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LABOUR: DISCRIMINATION AND EQUAL PAYI. SOURCES AND BACKGROUND
? 1. Common LawAllen v Flood  A.C. 1: p.172 Lord Davey: 'An employer may refuse to employ [a worker] for the most mistaken, capricious, malicious or morally reprehensible motives that can be conceived, but [the worker] has no right of action against him'Nagle v Feilden  2 Q.B. 633: (winds of change) CA refusal to strike out application for declaration against Jockey Club for refusing to grant a licence to woman trainers as infringement of 'right to work' because of monopoly over racing on the flat: but CA did not say that sex discrimination in itself was unlawful.
? 2. Sex Disqualification (Removal) Act 1919Removed restrictions on women (by reason of sex or marriage) as solicitors, civil servants, university students, etc. and in exercise of public function, civil or judicial office or post or vocation. Overtaken by SDA 1975 (below).
? 3. Race Relations Acts (RRA) 1965, 1968, 1976, and Race Relations (Amendment) Act 2000RRA 1965: Confined to discrimination in specified places of public resort and tenancies and established Race Relations Board (RRB) to enforce by conciliation;RRA 1968: Prohibited discrimination on racial grounds in employment, and allowed enforcement by voluntary industrial disputes procedures in 40 industries, with civil actions brought exclusively by RRB in CCs as fall-backMany weaknesses: (1) voluntary procedures were ineffective; (2) limited to direct discrimination; (3) Board could veto individual complainants going to court; (4) Board had no strategic enforcement powersRRA 1976: Based on proposals in White Paper Cmnd.6234, repealed earlier Acts, and followed almost exactly the structure and wording of SDA 1975 (below) applying this to discrimination on racial grounds. It did away with enforcement through voluntary machinery and created the Commission for Racial Equality (CRE). It also allows an individual to complain to industrial tribunals.RR(Amendment)A 2000: Extends Act to police and other public authorities, and places a duty on public authorities to have due regard to need to promote equality of opportunity and good relations between different racial groups.RRA(Amendment) Regulations 2003
? 4. Equal Pay Act 1970 (EqPA) and Sex Discrimination Acts (SDA) 1975 and 1986TUC campaigned for over 100 years for equal pay for men and women, but only called for legislation in 1963.EqPA 1970: Required equal terms and conditions of employment for men and women in the same employment in two situations: (a) when employed on 'like work', or (b) when employed on 'work rated as equivalent' under a job evaluation study (JES), but there was no obligation to undertake such a study.No general right to equal pay for work of equal value until after infringement proceedings by the EC Commission:Commission v United Kingdom Case 61/81  ECR 2601:Equal Pay (Amendment) Regulations 1983, S.I. 1983 No.1794: Adds basis of equal pay for work of equal value
? Since this is based on Art.141 EC (below) this takes precedence over 'like work' claims. The EqPA, as re-enacted with amendments in Sched.1 to SDA 1975 (below) came into force on 29 December 1975.Equal Pay Act 1970 (Amendment) Regulations 2003: Amended the regulations to extend the time limit for bringing claims to 6 months and to allow claims to back pay for 6 years.In terms of more general discrimination legislation:SDA 1975: It prohibited discrimination on grounds of sex and marital status in employment matters not covered by the EqPA (e.g. recruitment, promotion, dismissal and other detriment), and introduced the concepts of 'indirect' discrimination and positive action. Aggrieved individuals were given a right to complain to industrial tribunals, and strategic enforcement was entrusted to the Equal Opportunities Commission (EOC).
? Came into force at the same time as the EqPA. Based on proposals in White Paper, Cmnd.5724.SDA 1986: Removed the exclusion in respect of small employers and amended provisions concerning discriminatory terms in collective agreements, works rules and contracts. Introduced equal retirement ages.
? As a result of infringement proceedings:
? Commission v United Kingdom Case 165/82  ICR 192:
? Marshall v Southampton & Southwest Hampshire AHA (No.1)  IRLR 140:The SDA 1986 and Employment Act (EA) 1989 repealed nearly all legislation which treated men and women differently in employment, and allows sex discrimination only where it necessary to comply with statutory requirements to protect women in relation to pregnancy, confinement and specific health risks.Note the subsequent amendments which have been made:Sex Discrimination (Gender Reassignment) Regulations SI 1999/1102: Amended SDA to give effect to the CJEU's ruling in P v S  IRLR
347. Nb. Case C-117/01 KB v NHS Pensions Agency  IRLR 240Gender Recognition Act 2004: Enables transgendered people to apply for a Gender recognition certificate and thereafter a new birth certificate in their reassigned gender.The Sex Discrimination Act 1975 (Amendment) Regulations 2003 SI 2003/1657: Amended the coverage of the police and to extend the reach of the law to post-termination dismissalsThe Equality Act 2006: Created Equality and Human Rights Commission (EHRC), replacing EOC in 2007.The Sex Discrimination Act 1975 (Public Authorities) (Statutory Duties) Order 2006: Requires public authorities to eliminate sex discrimination and promote gender equality from 2007The Sex Discrimination Act 1975 (Amendment) Regulations 2007: Relate to sex discrimination in provision of goods and services in order to implement the EC Gender Directive (2004/113/EC). The main changes are to:
? Explicitly state that sexual harassment and harassment on grounds of sex in access to and the provision of goods, facilities, services or premises is unlawful.
? Extend protection from discrimination on grounds of gender reassignment to the provision of goods, facilities and services.
? Make explicit that less favourable treatment on the ground of a woman's pregnancy or maternity in the provision of goods and services is unlawful.
? Provide that, where there are proportionate differences in an individual's premiums and benefits in relation to financial and insurance products as a result of sex being a determinant factor in risk assessment, these differences must be based on relevant and accurate data which must be compiled, published and regularly updated.
? 5. Disability Discrimination Act 1995 (DDA) as amendedThe Disabled Persons (Employment) Act 1944:Required employers of a substantial number of employees to employ a quota (normally 3 %) of registered disabled persons, but this is generally thought to have been a failure.Disability Discrimination Act 1995:Repealed the Disabled Persons (Employment) Act 1944. Applied to an employer with more than 15 employees. Cf Framework Directive 2000/78 which has been implemented by SI 2003/1673 The Disability Act 1995 (Amendment) Regulations 2003.The Disability Rights Commission (DRC) Act 1999Set up the DRC with somewhat more extensive powers than CRE and EOC, now amalgamated into the CEHR.The Disability Discrimination Act 2005Creates a positive duty for disability equality, requiring public authorities to produce a Disability equality Scheme by December 2006 (SI 2005/2966 The Disability Discrimination (Public Authorities)(Statutory Duties) Regulations 2005). It also extended the definition of disability
? 6. Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO)The Fair Employment Act 1976:
?Applied the RRA and SDA model to discrimination on grounds of religion or political opinion between the Roman Catholic and Protestant communities in Northern Ireland. There were substantial amendments, and the current legislation imposes positive duties on employers to monitor and review the composition of the workforce and to take affirmative action.The Northern Ireland Act 1998, s.75Imposes a positive duty on public authorities to promote equality of opportunity not only between the Protestant and Roman Catholic communities but also between persons of different racial group, age, marital status or sexual orientation, between men and women generally between persons with a disability and without, and between persons with dependants and without. The 3 separate commissions dealing with religion, race and sex respectively were merged, from October 1999, into a single Equality Commission for Northern Ireland (ECNI).
7. EU Law7.1 Sex discrimination(a) The Legislation
? Until 2000, this was directly relevant only to sex discrimination.
? Art.157 TFEU (ex 141 EC): Requires Member States to ensure and maintain 'the application of the principle of equal pay for male and female workers for equal work or work of equal value.'
? The Equal Pay Directive 75/117/EC: Introduced the principle of equal pay for 'work to which equal value is attributed': Derived from Art.2(1) of ILO Convention No.100 (1951).
? The Equal Treatment Directive 76/207/EC: Prohibits discrimination on grounds of sex directly or indirectly by reference in particular to marital or family status as regards access to employment, vocational training, promotion, and working conditions. It was amended by Directive 2002/73 to impose a duty on Member States 'actively to take into account the objective of equality between men and women' when formulating laws. It also contains definitions of key terms and brings the 1976 directive in line with the Article 13 Directives in key respects (see below).
? Directive 86/378/EEC: Equal treatment in occupational schemes of social security
? The Burden of Proof Directive 97/80/EC: Defines indirect discrimination and reverses the burden of proof in sex discrimination cases
? Directive 2002/73: Amended Directive 76/207 to bring it into line with the case law of the Court of Justice and the Article 13 Directives.
? Council Directive 2004/113: Implementing the principle of equal treatment between men and women in the access to and supply of goods and services
? Seven of the sex equality Directives were recast into a single consolidated Directive 2006/54.
? The Equal Pay Directive 75/117, the Equal Treatment Directive 76/207 as amended by Directive 2002/73, the Burden of Proof Directive 97/80 as amended by Directive 98/52 and Directive 86/378/EEC on social security as amended by Directive 96/97/EC.
? See also on the principle of equal treatment to part-time and fixed-term contract workers:
? Part-Time Work Directive 97/81/EC (implemented by the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, SI No.1551),
? Fixed-Term Work Directive 99/70/EC (implemented by The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, SI 2034),(b) Direct Effect
? Art.119 (now 157) was ineffective before the series of cases brought by Gabrielle Defrenne against the Belgian national airline and State:
? Case 43/75 Defrenne (No.2)  ECR 455: Held: Art  was directly effective as regards 'direct and overt' discrimination but could not be used retrospectively for claims arising before 8 April 1976.
? Bilka-Kaufhaus GmBH v Weber von Hartz Case 170/84  IRLR 317:
? Art.157 TFEU and The Equal Pay Directive (which 'facilitates the practical application of Art.157) are directly effective both vertically (i.e. against the state), and horizontally (i.e. against private persons):
? Jenkins v Kingsgate (Clothing Productions) Ltd Case 96/80  IRLR 228: CJEU.
? The Equal Treatment Directive is directly effective vertically (i.e. against organs of the state) but not horizontally:
? Marshall v Southampton and Southwest Hampshire AHA, Case 152/84  IRLR 140: CJEU
? Marshall (No.2)  IRLR 445:(c) The Treaty of Amsterdam
? The Treaty of Amsterdam made some important changes to Art.157:
? Art.157(1): Incorporated into the definition of equal pay a reference to 'work of equal value',Note, the broad interpretation of 'pay' adopted by the CJEU has not been codified.
? Art.153(2): Allows for Union action in the field of 'equality between men and women with regard to labour market opportunities and treatment at work'
? Art.157(3): Provides an express basis for the Council to adopt measures (under the ordinary legislative procedure) 'to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value'Note that Art.2 EC included sex equality as one of the tasks of the Community, and in Art.3 as one of the activities of the Community;
? Art. 157(4): Allows Member States to adopt measures of positive action for women (see below).7.2 Other grounds of discriminationArticle 19 TFEU: (Ex Art.13 EC (introduced by the Treaty of Amsterdam)) Enabled the Council to 'take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation'. This is not directly effective.The Race Directive 2000/43/EC: Prohibits discrimination on grounds of race or ethnic origin in respect of employment, social protection, social advantages, education and goods and services.The Employment (or 'Framework') Directive 2000/78/EC: Prohibits discrimination on grounds of religion or belief, disability, age or sexual orientation in respect of employment or occupation (to be implemented by 2 December 2003, but this could be extended in respect of age and disability to 2 December 2006. The UK took advantage of this possibility: see http://www.dti.gov.uk/er/equality/age.htm).7.3 Charter of Fundamental RightsEquality matters found in Articles 20 - 26; Art. 6(1) TEU gives the Charter legal effect. The influence of the Charter has already been seen:
? Case C-236/09 Test-Achats  ECR I-000.7.4 General Principles of LawDo we have horizontal direct effect of general principles of law?
? Case C-555/07 Kucukdeveci v Swedex GmbH & Co. KG  AllER(EC) 867: German law said periods of employment completed before the age of 25 were not taken into account for calculating the notice period. Claimant was 28 and therefore could claim notice based on only three years employment with her (private sector) employer and not the full 10 she had actually worked. She argued that this was directly discriminatory on the grounds of age. Held: Direct discrimination on grounds of ageThe significance of this case lies in its reaffirmation of the controversial decision in Mangold, albeit in the context of a dismissal after the Directive had been (incorrectly) transposed into national law.
? Case C-144/04 Mangold v Helm  IRLR 143: Reasserting orthodoxy, the Court said that a directive cannot of itself impose obligations on an individual, and cannot therefore be relied on as such against an individual (i.e. no horizontal direct effect: -). It added that in a situation of horizontal direct effect, national courts must interpret national law, as far as possible, in the light of the wording and purpose of the Directive in order to achieve the result pursued by the Directive and thereby comply with Article 288(3) TFEU (the Marleasing approach: ). However, the national court made clear that Marleasing would not work on the facts of the case because the national rule was clear and precise and thus not susceptible to a Marleasing-style interpretation. The Court thus said that where a Directive embodies a general principle, that principle can be used to 'dis-apply' any conflicting national law:
50. It must be recalled here that ... Directive 2000/78 merely gives expression to, but does not lay down, the principle of equal treatment in employment and occupation, and that the principle of non-discrimination on grounds of age is a general principle of European Union law in that it constitutes a specific application of the general principle of equal treatment (Mangold ).
? 51. In those circumstances, it for the national court, hearing a dispute involving the principle of non-discrimination on grounds of age as given expression in Directive 2000/78, to provide, within the limits of its jurisdiction, the legal protection which individuals derive from European Union law and to ensure the full effectiveness of that law, disapplying if need be any provision of national legislation contrary to that principle (see, to that effect, Mangold, paragraph 77).Does this mean that general principles have horizontal direct effect even though provisions of unimplemented or incorrectly implemented directives do not? The effect of the ruling may be just that. This would lead to the paradoxical result that for reasons of legal certainty, unimplemented or incorrectly implemented directives do not have horizontal direct effect, yet general principles of law (concepts which are themselves inherently uncertain) may have horizontal direct effect in the name of effectiveness.
8. Human Rights Act 1998 (HRA)This 'brings home' rights under the European Convention on Human Rights [ECHR].Art.14: The enjoyment of the rights and freedoms set forth in this convention, shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status'.Note the following points:(1) Art.14 does not confer any free-standing right to equal treatment: only the rights and freedoms in the ECHR must be secured without discrimination, but Protocol No.12 which the UK has decided not to sign or ratify at present will do so;(2) Prohibited grounds are wider than in UK or EC legislation, but doesn't expressly refer to sexual orientation
? However, compare the following:
? Pearce v Governing Body of Mayfield School  IRLR 669: Hale LJ (obiter) 672-674: Says it would be possible to read and give effect to the Sex Discrimination Act compatibly with convention rights which she believes cover sexual behaviour as an aspect of 'private life' under Art.8 that can be exercised without discrimination on grounds of sexuality under Art.14
? Secretary of State for Defence v Macdonald  IRLR 431: Majority of the Court of Session took a narrower approach in that the interpretation of 'sex' as not including sexual orientation is not incompatible with any convention right.
? Note, the Convention does not expressly refer to disability but this may be 'other status' under Art.14(3) Only public authorities can be made responsible for breaches;(4) The concept of discrimination has not been elaborated by the ECtHR e.g. to include indirect discrimination
9. Equality Act 2006This piece of legislation achieves three goals:(1) Setting up a single equality commission, the Commission for Equality and Human Rights (ECHR)(2) Extends the prohibition against discrimination on the grounds or religion or belief, to the provision of goods, services and education(3) Duty on public authorities not to discriminate and to promote equal opportunities
10. Equality Act 2010The Discrimination Law Review and the Single Equality Bill (www.communities.gov.uk/index.asp?id=1017165):Our vision is of a society where there is opportunity for all and responsibility from all, regardless of age, disability, gender, race, religion or belief or sexual orientation; as well as background. Everyone should have an equal chance to make the most of natural ability; equitable access to public provision; equal status as a citizen; and equal responsibility back to society.Government Equalities Office, Press Release (http://www.equalities.gov.uk/equality_bill.aspx):The Equality Act 2010 provides a new cross-cutting legislative framework to protect the rights of individuals and advance equality of opportunity for all; to update, simplify and strengthen the previous legislation; and to deliver a simple, modern and accessible framework of discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society.'Hepple, Equality: The New Legal Framework (Hart 2011): The Act has three distinct features:(1) It is comprehensive, adopting a unitary/integrated perspective on equality enforced by a single EHRC(2) Harmonises, clarifies and extends concepts of discrimination, harassment, and victimisation and applies to 9 protected characteristics(3) Contains measures described as transformative equality, extends the public sector equality duties, broadens the scope for positive action??II. THE CONCEPT OF DISCRIMINATION
? A. IntroductionThere are two main approaches to the equality principle: formal and substantive equality; cf equal opportunities.Chapter 2 of the Act and s.111: List five main types of prohibited conduct:
? Direct discrimination: 'Like should be treated alike'
? Indirect discrimination: 'Group disadvantage' or 'equality of outcomes'
? Instructing, causing, inducing or aiding unlawful acts
? B. Direct discrimination1. Introduction1.1 The original approach: an example
? Reg. 3(1) of the Sexual Orientation Regulations: For the purposes of these regulations, a person ('A') discriminates against another person ('B') if - (a) on the grounds of sexual orientation, A treats B less favourably than he treats or would treat other persons;
? So claimant had to show that they were treated:Less favourablyThan a real/hypothetical comparator (except in pregnancy/maternity cases)On the grounds of(his/her)Protected characteristic(detriment)2. StatuteSection 13 Direct discrimination
? (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
? (2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim.
? (3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.
? (4) If the protected characteristic is marriage and civil partnership, this section applies to a contravention of Part 5 (work) only if the treatment is because it is B who is married or a civil partner.
? (5) If the protected characteristic is race, less favourable treatment includes segregating B from others.
? (6) If the protected characteristic is sex---
? (a) less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding;
(b) in a case where B is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.
3. Explanatory NotesEffect
? 58. This section defines direct discrimination for the purposes of the Act.
? 59. Direct discrimination occurs where the reason for a person being treated less favourably than another is a protected characteristic listed in section 4. This definition is broad enough to cover cases where the less favourable treatment is because of the victim's association with someone who has that characteristic (for example, is disabled), or because the victim is wrongly thought to have it (for example, a particular religious belief).
? 60. However, a different approach applies where the reason for the treatment is marriage or civil partnership, in which case only less favourable treatment because of the victim's status amounts to discrimination. It must be the victim, rather than anybody else, who is married or a civil partner.
? 61. This section uses the words 'because of' where the previous legislation contains various definitions using the words 'on grounds of'. This change in wording does not change the legal meaning of the definition, but rather is designed to make it more accessible to the ordinary user of the Act.
? 62. The section also provides that:
? for age, different treatment that is justified as a proportionate means of meeting a legitimate aim is not direct discrimination
? in relation to disability it is not discrimination to treat a disabled person more favourably than a person who is not disabled;
? racial segregation is always discriminatory;
? in non-work cases, treating a woman less favourably because she is breast-feeding a baby who is more than six months old amounts to direct sex discrimination; and
? men cannot claim privileges for women connected with pregnancy or childbirth.'
4. Perceived and Associative discriminationThese are now covered in respect of all strands except marriage due to the wide phrase 'because of a protected characteristic' (s.13). Harassment based on perception and association is also covered because of the phrase 'related to a relevant protected characteristic' (s.26(1) EqA 2010)
? Attridge Law v Coleman  IRLR 722: Discrimination includes 'perceptual' and 'associative' discrimination. C was employed as a legal secretary by Attridge Law, a firm of solicitors. Her disabled son was born in 2002. He required specialist care. C was his primary carer. C accepted voluntary redundancy. She then sought to bring a disability discrimination claim, and an unfair constructive dismissal claim, relying on EU law, against her employers, alleging that she had been subject to unfair treatment on the ground that she had a disabled son. She argued that the protection against discrimination "on grounds of disability" under the Equal Treatment Directive 2000/78 meant that the Disability Discrimination Act 1995 (discrimination "relates to the disabled person's disability") should be interpreted purposively so as to cover discrimination by reason of C's association with a disabled person. ET referred questions to the CJEU asking whether the directive covers direct discrimination and harassment in such situations. CJEU Held: The directive must be interpreted as meaning that the prohibition of direct discrimination is not limited only to people who are themselves disabled. Where an employer treats an employee who is not himself disabled less favourably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee, such treatment is contrary Article 2(2)(a). This same interpretation is to be given to the prohibition on harassment.
? "Even though the person who is allegedly subject to direct discrimination on the ground of disability is not herself disabled, the fact remains that it is the disability which is the ground for the allegedly less favourable treatment. Where it is established that such an employee suffers direct discrimination on the ground of disability, an interpretation of the Directive which limits its application only to people who are themselves disabled is liable to deprive that Directive of an important element of its effectiveness and to reduce the protection which it is intended to guarantee".
? English v Thomas Sanderson  IRLR 206: An employee was taunted by his work colleagues for being gay, when they knew full well that he was not gay. Held: C had suffered less favourable treatment on the basis of the protected ground of sexual orientation. His claim of direct discrimination was successful.
5. StereotypingEuropean Roma Rights  UKHL 55: Prague airport pre-clearance scheme operated bilaterally between UK and Czech Republic with aim of controlling the flow of asylum seekers. Proceedings brought to challenge the scheme by the European Roma Rights Centre and six Czech Roma who had been refused leave to enter the UK. One of the challenges was based on infringement of s19B of the Race Relations Act 1976 (unlawful for public authorities to carry out their functions in a manner which constituted discrimination). Argued the pre-clearance scheme operated in a way to treat Roma less favourably than non-Roma, with longer and more intrusive questioning, greater suspicion and had to provide a higher standard of proof as to their intentions. HL Held: The Home Office was in violation of s19B of the RRA. Roma were treat less favourably than non-Roma applicants. Baroness Hale said that the object of the legislation is to ensure that 'each person is treated as an individual and [is] not assumed to be like other members of the group, whether or not most members of the group do have such characteristics.' For example:
? "Even if, for example, most women are less strong than most men, it must not be assumed that the individual woman who has applied for the job does not have the strength to do it. Nor, for that matter, should it be assumed that an individual man does have that strength. If strength is a qualification, all applicants should be required to demonstrate that they qualify."
6. Elements of direct discrimination claim
? Department of Work and Pensions v. Thompson  IRLR 348: In essence, there are 3 things to show:
? (1) Less favourable treatment by the employer of the woman than the man;
? (2) That less favourable treatment was on the ground of [because of] sex;
? (3) That the complainant had been subjected to detriment.Note: there is no general justification defence, but cf the expanded role for occupational requirement defence under Equality Act 20106.1 Less favourable treatment
? (a) Consistent treatment
? Like must be treated alike. Deprivation of choice is sufficient to constitute 'less favourable' treatment:R. v Birmingham City Council, ex p. E.O.C.  IRLR: Birmingham Council had a statutory duty to provide secondary education in its area. In carrying out those duties, it provided selective secondary education in independent, single-sex grammar schools for 5% of children at age 11. Selection was based on examination results, but there were more places available for boys, and, as a result, girls required higher marks in the entrance exams to gain a place. HL Held: The claim of direct discrimination was established. Lord Goff: "There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex. The intention or motive of the defendant to discriminate, though it may be relevant so far as remedies are concerned... is not a necessary condition to liability; it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the ground of sex. Indeed... if the council's submission were correct it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but, for example, because of customer preference, or to save money, or even to avoid controversy. In the present case, whatever may have been the intention or motive of the council, nevertheless it is because of their sex that the girls in question receive less favourable treatment than the boys, and so are the subject of discrimination under [the EqA]."Shamoom v CC of the RUC  IRLR 28:
? (b) Unequal outcomes
? The principle is satisfied regardless whether the individual benefits as a result. If the comparators are treated equally badly there is no less favourable treatment:??Kettle Produce v Ward, UKEATS/0016/06/M: Cleaner worked in fruit procession and packaging factory. It was accepted that there was a history between C and her manager, and it was clear he did not like her. In one incident, C was waiting for vacant cubicle in the bathroom when R entered and shouted at her to "not hide in here". ET Held: R had not treated C differently because she was a woman. EAT Held: The ET had failed to frame the hypothetical comparator correctly: "The question which should have been asked by the Employment Tribunal is this: would the Respondent, in the form of a female manager, with the same robust management style as R, treat a male cleaner having the same sensitivity as the Claimant, believed to be skiving, in the same way as R treated the Claimant" However they found that neither the applicant or the comparator would have been treated differently.
? (c) Level up or down
? Following on from (b), the principle can be satisfied by removing a benefit from one group (levelling down) as by extending the benefit to the other group (levelling up):Case C-408/92 Smith v Avdel Systems  IRLR 602: Employer pension age of 65 for men and 60 for women. Women's pension age increased to 65 in 1991, effectively reducing the pension payable to women retiring between 60 and 65 by up to 20%. 78 women claimed that the pension reductions were contrary to Art 199 EC [now Art 157]. Argued employers were not permitted to eliminate discrimination by withdrawing from one sex the rights currently enjoyed by that sex and that the employer must instead "level up" by extending the rights enjoyed by the advantaged sex to the disadvantaged sex ECJ Held: Art 119 did not preclude "level down" measures.
6.2 'of the woman than the man': need for a comparator
? (a) The Problem
? Thought that the requirement of a comparator would be dropped because it can be difficult to show:Grant v South West Trains  IRLR 206:P v S  IRLR 347:
? (b) No material difference: Who is the comparator?
? StatuteSection 23 Comparison by reference to circumstances(1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.(2) The circumstances relating to a case include a person's abilities if---
? (a) on a comparison for the purposes of s 13, the protected characteristic is disability;
? (b) on a comparison for the purposes of s 14, one of the protected characteristics in the combination is disability.(3) If the protected characteristic is sexual orientation, the fact that one person (whether or not the person referred to as B) is a civil partner while another is married is not a material difference between the circumstances relating to each case.
? Explanatory notesEffect91. This section provides that like must be compared with like in cases of direct, dual or indirect discrimination. The treatment of the claimant must be compared with that of an actual or a hypothetical person - the comparator - who does not share the same protected characteristic as the claimant (or, in the case of dual discrimination, either of the protected characteristics in the combination) but who is (or is assumed to be) in not materially different circumstances from the claimant. In cases of direct or dual discrimination, those circumstances can include their respective abilities where the claimant is a disabled person.92. The section also enables a civil partner who is treated less favourably than a married person in similar circumstances to bring a claim for sexual orientation discrimination.Background93. The section replicates similar provisions in previous legislation but also accommodates the new concept of dual discrimination.ExamplesA blind woman claims she was not shortlisted for a job involving computers because the employer wrongly assumed that blind people cannot use them. An appropriate comparator is a person who is not blind - it could be a non-disabled person or someone with a different disability - but who has the same ability to do the job as the claimant.A Muslim employee is put at a disadvantage by his employer's practice of not allowing requests for time off work on Fridays. The comparison that must be made is in terms of the impact of that practice on non-Muslim employees in similar circumstances to whom it is (or might be) applied.
? (c) Hypothetical comparator
? Balamoody v. UK Central Council for Nursing  IRLR 288:
? Shamoom v CC of the RUC  IRLR 285:
? (d) Pregnancy
? There are circumstances, such as pregnancy, where no comparator is possible and the CJEU has dropped the need for a comparator:Case C-177/88 Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus  ECR I-3941: (all female field):Case C-179/88 Handels- og Kontorfunktionaerernes Forbund i Danmark (Hertz) v Dansk Arbejdsgiverforening  ECR I3979:
? The key points to note about pregnancy and maternity discrimination in employment are:Pregnancy and maternity discrimination in the workplace is prohibited in the specifically identified circumstances set out in section 18. It is unlawful for an employer to:discriminate by treating a job applicant or employee unfavourably because of her pregnancy or because of an illness she has suffered as a result of her pregnancy during the protected period (section 18(2)); ordiscriminate by treating an employee unfavourably because she is on compulsory maternity leave or because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave (section 18(3) and (4)).The concept of 'unfavourable treatment' is new but is likely to be interpreted in a similar way to the 'detriment' provisions ie 'a reasonable person would or might take the view that she has been disadvantaged. Note the deliberate absence of any requirement for a comparator.Eversheds Legal Services Ltd v De Belin UKEAT/0352/10: R had to make an employee redundant. One of the scoring criteria was the length of time each employee took to recover money from their clients, but since C's colleague was on maternity leave during the relevant period, she was awarded the maximum possible score. Her total score ended up very slightly higher than C's and he was made redundant. C claimed he had been discriminated against because he had been treated less favourably than his colleague. ET Held: The scoring method constituted unlawful sex discrimination and C had been unfairly dismissed. R argued that any lesser score would have been in breach of the SDA 1975. EAT Held: More favourable treatment of the female colleague in order to compensate her for a disadvantage consequent on her absence on maternity leave would not constitute unlawful sex discrimination, so long as the treatment was no more favourable than was reasonably necessary (proportionality). On the facts there were more proportionate means available to ensure she did not lose out in the redundancy exercise because of her maternity absence.
? "In our view the most satisfactory alternative was to measure the lock up performance of both the candidates for redundancy as at the last date that Ms. Reinholz was at work. ... It is important not to lose sight of the purpose of the measurement exercise: it was designed to shed light on (one aspect of) the capability of the employees who were candidates for redundancy. There is no magic in the date at which the measure is taken: it?
was no doubt natural to take it at the most recent convenient date, but there is no reason to believe that a measure at a somewhat earlier date would be any less reliable as an indication of whatever qualities it is which produce good lock up performance. Ms. Reinholz would have lost no legitimate advantage in having her performance measured for the last period at which she was at work and would have had no cause for complaint if that course had been taken (on the basis, of course, that the Claimant's performance was measured for the same period). What she was entitled to was to be scored for lock up performance, notwithstanding her maternity absence, on a basis that reflected her performance/capability; and the "earlier date" alternative would have achieved that."
StatuteSection 18 Pregnancy and maternity discrimination: work cases(1) This section has effect for the purposes of the application of Part 5 (work) to the protected characteristic of pregnancy and maternity.(2) A person (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably ---
? (a) because of the pregnancy, or
? (b) because of illness suffered by her as a result of it.(3) A person (A) discriminates against a woman if A treats her unfavourably because she is on compulsory maternity leave.(4) A person (A) discriminates against a woman if A treats her unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.(5) For the purposes of subsection (2), if the treatment of a woman is in implementation of a decision taken in the protected period, the treatment is to be regarded as occurring in that period (even if the implementation is not until after the end of that period).(6) The protected period, in relation to a woman's pregnancy, begins when the pregnancy begins, and ends---
? (a) if she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when she returns to work after the pregnancy;
? (b) if she does not have that right, at the end of the period of 2 weeks beginning with the end of the pregnancy.(7) Section 13, so far as relating to sex discrimination, does not apply to treatment of a woman in so far as---
? (a) it is in the protected period in relation to her and is for a reason mentioned in paragraph (a) or (b) of subsection (2), or
? (b) it is for a reason mentioned in subsection (3) or (4).
? Explanatory notesEffect75. This section defines what it means to discriminate in the workplace because of a woman's pregnancy or pregnancyrelated illness, or because she takes or tries to take maternity leave. The period during which protection from these types of discrimination is provided is the period of the pregnancy and any statutory maternity leave to which she is entitled. During this period, these types of discrimination cannot be treated as sex discrimination.Background76. This section is designed to replicate the effect of similar provisions in the Sex Discrimination Act 1975.ExamplesAn employer must not demote or dismiss an employee, or deny her training or promotion opportunities, because she is pregnant or on maternity leave.An employer must not take into account an employee's period of absence due to pregnancy-related illness when making a decision about her employment.'
6.3 Knowledge, Intention, Motivation
? The old test under the (then) SDA s.1(1)(a):
? Peake v Automotive Products Ltd  IRLR 105: EAT Phillips J p.108: 'requires one to look to see what in fact is done amounting to less favourable treatment, and whether it is done to the man or woman because he is a man or woman. If so, it is of no relevance that it is done with no discriminatory motive'
? Objective 'but for' test: the leading case is now:
? James v Eastleigh Borough Council  IRLR 288: Council charged 75p admission to swimming pool but allowed free swimming for "persons who have reached the state pension age". Mr and Mrs J were aged 61, she qualified (60) but he did not (65). Claimed he has been discriminated against on grounds of sex contrary to s.29(1)(b) SDA (use of facilities). Issue arose as to whether the policy amounted to direct discrimination 'on the grounds of his sex' within s.1(1)(a) SDA. Council argued its aim was to aid the needy rather than giving preference to one sex over the other, any discrimination was thus indirect, fell within s.1(1)(b) and therefore capable of being justified. HL Held: The Council had discriminated against Mr J on the ground of his sex contrary to s.1(1)(a) and s.29 SDA. The simple question to be considered under s.1(1)(a) is: "would the complainant have received the same treatment from the defendant but for his or her sex?" This embraces both the case where the treatment derives from the application of a gender-based criterion and the case where it derives from the selection of the complainants because of his or her sex. The correct test under s.1(1)(a) is objective, not subjective. Whether or not the treatment is less favourable on the ground of sex is not saved from constituting unlawful discrimination because D acted with benign motive. Lord Bridge: The purity of the discriminator's subjective motive, intention or reason for discriminating cannot save the criterion applied from the objective taint of discrimination on the ground of sex. Further, the fact that the condition to be satisfied referred to pension age and did not refer expressly to sex did not enable the Council to escape the charge of direct discrimination "on the ground of sex". The expression "pensionable age" was no more than a convenient shorthand expression which refers to the age of 60 in a woman and to the age of 65 in a man. In considering whether there has been discrimination "on the ground of sex", it cannot make any difference whether the alleged discriminator uses the shorthand expression or spells out its full meaning. Lord Griffiths and Lord Lowry, dissent: Use of "but for" causation renders the phrase "because of" in s13 somewhat otiose as the causation test disregards any reason for the different in treatment
? Nagarajan v London Regional Transport  IRLR 572: Lord Nicholls adopted a more refined approach, enjoining a court or tribunal to avoid the "but for" test and instead, with the "reason why" test, enquire about why the employer acted in the way he did. The test forges a division between (1) the reason or ground for the treatment and (2) the employer's motive for the treatment. The latter is drenched in subjectivity and although it may be wholly benign, it is always an irrelevant consideration. However, the former, which may be tainted by discrimination when assessed by the tribunal in light of all the evidence - is always relevant. In this way, the concept of direct discrimination continues to be effectual in addressing cover, unconscious, or unintentional discrimination and stereotypical assumptions about the working potential of individuals falling within one of the protected groups, whilst at the same time not suffering from the accusation that the word "because of" in s13 are rendered obsolete."...in every case it is necessary to enquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances."?
Two things remained unclear: (1) Did Lord Nicholls approach amount to a restatement of the causation test (he never casted doubt on the "but for" approach); (2) How do you draw a distinction between the reason or ground for the treatment and the employer's motive.
? R (E) v. Governing Body of JFS and the Admissions Panel of JFS  IRLR 136: SC adopted the distinction between the reason for the treatment and the employer's subjective motive or purpose and ruled that the former could be identified on the basis of an objective evaluation of all the facts. JFS was a comprehensive secondary 'faith' school maintained by the local authority with an Orthodox Jewish character. It was the school's policy to give preference for places to those recognised by the Chief Rabi as Orthodox Jews. Jewish religious law recognises the child of an Orthodox Jewish mother (including converts) to be automatically and inalienably Jewish ("the matrilineal test"). C's mother was a former Catholic converted non-Orthodox Jew, who worshipped at synagogue. JFS refused C admission. C's father sought judicial review of the decision, claiming the policy constituted unlawful race discrimination, contrary to the RRA 1976, since the matrilineal test discriminated against C on the ground of his ethnic origins. JFS argued the matrilineal test was founded on religious dogma and the discrimination was justified where the school was oversubscribed. SC Held: JFS discriminated against C on the ground of his ethnic origins and that constituted direct racial discrimination. In deciding the grounds for discrimination it is necessary to address simply the question of the factual criteria that determined the decision made by the discriminator. It is better simply to ask, what were the facts that the discriminator considered to be determinative when making the relevant decision? Whether there had been discrimination on the ground of race depended upon whether race was the criterion applied as the basis for the discrimination. The motive for discriminating according to that criterion is not relevant. The matrilineal test was based on ethnic origins. The fact that JFS had been subjectively motivated by compliance with religious law, and not ethnicity, was irrelevant. The terminus for the Chief Rabi was a decision on a matter of religion but the route was ethnic origin. Lord Phillips: When... Lord Nicholls spoke of a "subjective test" he was speaking of the exercise of determining the facts that operated on the mind of the [employer], not his motive for discriminating. The subjective test, described by Lord Nicholls, is only necessary as a seminal step where there is doubt as to the factual criteria that have caused the [employer] to discriminate. There is no need for that step in this case, for the factual criteria that governed the refusal to admit JFS are clear..."
? Thus, where an employer adopts a gender-based, race-based, disability-based, etc, criterion then the employer's decision or action will be inherently discriminatory. However, where it is unclear whether the act was done on the basis of a discriminatory basis, the court may have to look at what facts were operating on the mind of the respondent.
? Bull v Hall  UKSC 73: A hotelier applied a criterion whereby couples would only be admitted to a double room if they were married. Lady Hale Held: This criterion was inherently based on, or linked to, an individual's sexual orientation, therefore, two homosexuals were held to have been directly discriminated against when they were refused a double room
? Moyhing v Barts and London NHS Trust  IRLR 860:
? Amnesty International v Ahmed  IRLR 884:
? CHEZ razpredelenie Bulgaria AC v. Komisa ZA Zashtita ot Diskriminatsia Case C-83/14  IRLR 746: Governmental body installed gas metres that were too high to access for Roma people (who were on average shorter). It was clear on the facts that this had been done to deliberately done to harm the Roma people.Deakin: Case shows that intention to harm a particular group may establish direct discrimination.6.4 Causation
? The unlawful ground must be an 'important factor' but need not be the sole or principal reason for the act:
? Owen & Briggs v James  IRLR502: CA
? Igen Ltd v Wong  EWCA Civ 142: Adopting Nicholls' approach in Nagarajan, Gibson LJ said an employer will avoid liability if 'the treatment was in so sense whatever' on the protected ground.
? But if not a factor at all, there will be no claim:
? B v A  UKEAT 0450_06_0901: B solicitor employed A as a secretary. She was promoted to B's personal assistant and they commenced a consensual relationship. A developed a "regular association" with another man called Mustafa. B and A's relationship began to decline until B saw A walking out of the office with Mustafa and dismissed her instantly. ET Held: The dismissal was related to the sex of the applicant. EAT Held: It was apparent that the sole reason for dismissal B's jealousy of the relationship A had with Mustafa. A's sex was not a factor.6.5 Detriment
? Note, the dress code cases: The Courts have tended to say that 'gender specific' dress codes do not impose a 'detriment', merely a social norm i.e. it is normal for women and men to dress differently.
? Burrett v West Birmingham Health Authority  IRLR 7: Female nurses asked to wear caps while men were not. Held: Different treatment was not sufficient, that treatment must be unfavourable.
? Smith v Safeway plc  IRLR 456: Supermarket required employees to adhere to a dress and appearance code, which had a maximum hair length for males but not females. Male employee dismissed for ponytail claimed discrimination on grounds of sex. CA Held: The rule was not discriminatory. There is an important distinction between discrimination between the sexes and discrimination against one of the sexes. Discrimination is failing to treat men and women the same, and involves not merely the sexes being treated differently, but that the treatment of one is less favourable than the other. A dress code which applies a conventional standard applies an even-handed approach between men and women, and not one which is discriminatory. The 'conventional standard of appearance' is the appropriate criterion to be applied when considering whether a requirement operates unfavourably with regard to one or other of the sexes. To establish whether the code treats one sex less favourable than the other requires consideration of the code as a whole. An appearance code can be challenged before a tribunal on the ground that it operates unfavourably towards the applicant on grounds of their sex, for example because of the impact on comfort or health, or the degree of restriction imposed on the freedom to govern one's own appearance. There is no rule of law that it can never be discriminatory to require men to wear their hair short. However the the EAT had erred in law in substituting their own view of the facts for that of the industrial tribunal. It was not perverse for the industrial tribunal to conclude that it was not discriminatory for the employers to ban unconventionally long hair for men when such length of hair for women was not unconventional.
? Department of Work and Pensions v. Thompson  IRLR 348:
? G v Head Teacher and Governors of St Gregory's Catholic Sciencec College  EWHC 1452: School uniform policy prohibiting boys from wearing their hair in cornrows was indirect racial discrimination. However, the claimant's sex discrimination claim failed.Deakin: We might argue that the purpose of the Equality Act was to break down stereotyping and meaningless distinctions between men and women. While it is right that claimants should have to show 'detriment' - this should be interpreted as a loss of human dignity and autonomy, perhaps to a lesser extent than the courts have interpreted. The courts currently does not affect gender binary assumptions, perhaps they should.
8. Recent Examples of direct discrimination claims outside the field of sexLisboa v Realpubs Ltd and Others  UKEAT 0224/10: Gay bartender of formerly gay pub which had been taken over and heteronormatised resigned and claimed constructive dismissal on two grounds (1) direct discrimination as a result of comments directed towards him about his sexual orientation and (2) unlawful discrimination whereby the C was put under pressure to work in and co-operate with a policy of making the pub less welcoming to gay customers than to 'straight' customers. EAT Held: It was plainly the case that gay customers were treated less favourably on the grounds of their sexual orientation, and consequently if followed that the claimant's reason for resigning was prompted by unlawful discrimination against customers.Wilkinson v. Springwell Engineering Limited Et/2507420/07: The reason for the dismissal of an 18 year old office administrator was not for capability, as the employer claimed, but on grounds of her age. ET Held: The employer has made a stereotypical assumption founded on age to the detriment of the employee and has assumed a relationship between experience and age and capability.O'Reilly v. British Broadcasting Corporation And Another ET/2200423/10: Female, aged 51, BBC Countryfile presenter who had been dropped from the programme alleged age and sex discrimination. ET Held: The desire to appeal to younger viewers constituted a legitimate aim but the substitution of older presenters with younger ones was not a proportionate means of achieving that aim. Found direct age discrimination but dismissed sex.
9. Can direct discrimination be justified?
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