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Labour Discrimination Notes

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EMPLOYMENT EQUALITY AND DISCRIMINATION LAW

Some discrimination inevitable in hiring process. EA aims to ensure it is on meritocratic grounds.

Contextual Introduction to employment equality law
 Negative obligation: do not treat one class differently from another. Paradox - treat unequal's as equal.
 Anti-discrimination laws impinge upon the proper functioning of the labour market. Proscriptive obligations to interfere in the employer's freedom of contract.
- Taiwo v Olaigbe (2016)- EA limits freedom of contract to protect specified groups who have historically been discriminated against by those suppliers, shut out of access to employment for irrelevant reasons which they can do nothing about.
 Cabrelli:
1 Equality doesn't explain anti-discrimination law coz not it's not just about 'treat like groups alike' e.g if there's been structural discrim over a sustained period of time that the group is inherently disadvantaged in workplace e.g women we want to treat them.
2 Equality assumes we are all identical- not true at all. Hayek argues that factual equality being a justification for measures based on principle of equality is absurd, the calls for equality is coz people do possess inherent differences. He says the pursuit of liberty may be wholly detrimental to the achievement of equality so if emphasis is pushed to promoting equality, this is at the expense of liberty.
- Allen v Flood- 'A man has no right to be employed by any particular employer and has no right

any particular employment if it depends on the will of another'.
Anti-discrim law is the antithesis of freedom of contract: says that some grounds fro private decision are so improper that it is both immoral and illegal for the gov to allow ERs to use them in deciding when to hire,
retain, fire or promote workers.
Against anti-discrimination laws:
o Epstein - curtailment of employer liberty. Distorts markets. Intervention is wholly misguided.
o Four arguments can be made in support of Epstein's view (that it should be left to the free market):
(i)
Market can resolve problems. Discriminatory employers forced out of marketplace as (a)
less efficient as hiring worse people 'bigots are weak competitors, the market will drive them out'-eg not hiring a Cambridge educated female coz she's a womenER would lose out when another firm hires them! (b) reputational damage from discrimination.
 Schwab - disputes this coz if enough discriminatory employers exist,
discrimination will still occur. Similarly profit-maximising ERs in competitive markets will cater to the discriminatory tastes of EEs or customers e.g if some customers will pay less for a service from a black employees then they become less valuableresult could be segregation/discrimination.
(ii)
Becker - What may appear to be sex discrimination is in fact the wage and occupational differentials between the sexes being a manifestation of investment made by women in their human capital in the labour market. Lifestyle choices they have made affect their worth e.g to take time of for kids/housework and women more tired if doing work +
housework whereas men more productive @ work coz when not at work they're just doing leisure.
 Against this: it's ingrained institutional dynamic which assumes only females can undertake childcare chores but men can perform these as effectivelyantidiscrim laws promote a more even distribution of responsibility for childcare b/w men+ women and helps reduce institutional perception that female labour is inferior to male.
(iii)
Posner - Discrimination laws self-defeating. Costs outweigh benefits (which are illusory).
Employers will replace female workers with capital if they think women are unproductive. It's better for ER to hire discriminatorily then face a law suit coz these are rare and damages in the suit are usually small coz it's the diff b/w what she currently EMPLOYMENT EQUALITY AND DISCRIMINATION LAW
earns and what the wage would be in that job (normally not that diff). Discriminatory firing damages are high so in that case ER encouraged to take on less of those staff in first place. If more females (who are unproductive)higher costs so could lead to overall reduction in wage levels across all EEs or increased consumer prices.
 However this assumes all ERs operate in a perfectly competitive free labour market and they'll respond rationally to all situations they encounter in that market.
(iv)
Unjustified exercise of state power contradicting neo-liberal philosophy - anti-discrim laws is state neutrality beyond corrective justice achieved by law of contract, tort etc,
instead it is a redistributive nature.
 However this overlooks social costs imposed on society by failures in the operation of labour market e.g social security benefit payments.
Designing a framework: exploring the theoretical justifications and potential policy objectives
Shows formal equality, no account taken of differences, treat all equally.

Formal equality: personal autonomy, state neutrality, procedural justice. Not concerned with results.
Just that like is treated with like. Statutory notion of direct discrim understood to represent the statutory notion of formal equality.
Criticisms of formal equality:
o Westen - Requires external value judgment as to which groups are 'alike'. 'It tells us to treat like people alike; but when we ask who 'like people' are, we are told they are 'people who should be treated alike'. The 'comparator' implicitly predetermined to be a male.
o Honeyball- Argues the comparator should be self-comparison (e.g same person minus the discriminatory factor e.g racial characteristic).
 NB current law is that there does need to be a comparator (s23 EA).
o It is inherently individualistic- elides group-based characteristics attributable to individuals and relies on an indivudal-litigation-driven model to achieve equality. Negative laws so claimants have to personally vindicate their legal rights in a tribunal or court.
o Treatment just has to be same as comparator - this means it's entirely legal for an ER to treat claimant and comparator equally badly level down not level up of protection.
 Substantive equality: dignity, democratic participation, redistribution. Certain groups should be treated differently from mainstream in order to enable them to overcome embedded structural disadvantages.
Eg two boxes to stand on in the pic.
o Equality of opportunity: Anti-discrim laws to make level playing field (says the disadvantaged effectively start further behind in the race). Gets you to start at same position then based on merit so rejects concept of quotas or targets whose aim is of equality of outcome. This would be positive action to encourage ppl to get to same starting point.
 Cavanagh -against equality of opportunity coz jobs can't be shared so everyone gets an equal chance at becoming unequal.
o Equality of results: Encapsulated by indirect discrimination -ensure that application of an apparently neutral criterion does not disproportionately adversely affect an individual falling within a protected group.
 However, can always be justified by business requirement etc.
EMPLOYMENT EQUALITY AND DISCRIMINATION LAW
o Those on mat leave getting more favourable treatment than ordinary workers not on mat leave=
substantive equality.
- Criticism of indirect discrim:

1. Always necessary for individual to show that effect of applying those criteria leads to individual and group disparity when compared with a comparator falling within the advantaged group.

2. ER is afforded the opportunity to justify disparate impact showing they had a legit business requirement and had a real need to apply the criterion.

Positive discrimination: It is more favourable treatment of a protected constitutency. Paradoxical given that it is a manifestation of an equality policy.
o It's arguably a form of social engineering/redistributive justice - attempt to ensure all groups represented based in proportion to their population (means pattern of distribution of jobs in accordance with a predetermined end).
o Justified on basis that the dignity, identity, autonomy+ self-worth of individuals in that disadvantaged group should be respected.
o It involves reverse direct discrim.
o Collins - positive discrimination in employment such as police may still have a role -
representativeness to the population they service is a vital ingredient in ensuring success of service. Also in cases where legitimacy may depend on diversity

representation, a systeme favouring those under-represented minorities who are qualified job may be justifiable.

Eligibility to claim
(i)
Personal
 Part 5 EqA 2010 covers:
 employees and job applicants (ss39 and 40)
 contract -work (s.41) - NB Abbey Life v Tansell [2000] IRLR 387
 the police (ss42 and 43)
 barristers, advocates (ss44-47)
 office holders (ss49-52)
 professional and trade qualifications (ss.53-54)
 vocational training and employment agencies (ss55 and 56)
 trade organisations (s.57)
 official business of members (s.58)
 'Contract workers' also are covered (s.41 EA) - but difficult to show contract with principal as opposed to agency.
Abbey Life v Tansell (2000)
FACTS  Mr Tansell was employed by his own company, his own company supplied his services to an agency which supplied him to an end user. Issue- was he a contract worker in respect of end user despite all of the intermediaries?
HELD
 LJ Mummery said on facts of the contractual arrangement b/w own company and agency, they differed from the standard case as to the parties and number but for EE the realities of life in the workplace remain the same in each case so more than probable that parl intended to confer rather than deny protection in this case so he was able to bring a disability discrimination case.

FACTS

Muschett v HM Prison Service
Mr Muschett had enrolled with a subsidiary of an employment agency (Brook Street plc) and was sent on temporary assignment to HM Prison Service hoping this would lead to a permanent post. He had no written contract with the prison and his wages were paid by the agency which made tax and
NI deductions.
After 4 months his job was terminated, brought UD claim and discrimination on grounds of sex, race+
religion against both the prison service and agency. HM Prison Service argued he wasn't an EE under s230 ERA 1996. EMPLOYMENT EQUALITY AND DISCRIMINATION LAW
HELD
 As Mr Muschett was under no obligation to the Prison Service and could terminate the contract at any time by giving agency notice, he was merely a temporary agency worker not an EE so under no contractual obligation to work was fatal in deciding this.
 Held that the court lacked jurisdiction to hear an agency worker's discrimination claim against an
'end user'. Distinguished from Abbey Tansel where the agency worker can bring discrim claim coz they do have a contract of employment with the employment agency so fall under the 'contract worker' provisions
 Criticised as failing to comply with the EA 2010.
Not only 'employees' but also those 'under a contract personally to do work' (s.83(2) EA 2010).
Jivraj v Hashwani [2011] UKSC-arbitrators aren't protected by the legislation
FACTS  Mr J and H entered into joint venture agreement containing an arbitration clause which provided that in the event of a dispute that they were unable to resolve, the dispute should be resolved by arbitration before 3 arbitrators, each of whom should be a respected member of the Ismaili community (of which they were both members).
 Dispute coz one of the appointed arbitrators wasn't a member of the Ismaili community, the other party said this requirement was unlawful as contravened Employment Equality (Religion and Belief)
Regs 2003 prohibiting an ER from discrim on grounds of religion in relation to employment in GB.
 Principal question = Was arbitration agreement void on grounds that it constituted an unlawful arrangement to discriminate on grounds of religion when choosing between persons offering personal services?
HELD
 COA drew an analogy with instructing a solicitor to deal with a piece of legal business:
- 'Since an arbitrator contracts to do work personally, the provision of his services falls within the definition of employment' so direct discrim against arbitrators not in that community so void.
 UKSC overturned COA, instead UKSC held arbitrators were genuinely self-employed so outside scope of the Regs/Equality Act so the anti-discrim provisions aren't applicable to selection, engagement or appointment of arbitrators.
- Definition requires not just a contract to do work but employment under such a contract so the role of arbitrator isn't naturally described as employment at all.
- It shouldn't include 'independent providers of services who are not in a relationship of subordination' (Allonby- EU case)- so all UK authorites to be read in light of this.
- UKSC ruled that C must be in a relationship of subordination vis-à-vis the recipient of his/her services for s83(2)- arbitrators not subordinate, they have a duty to be impartial and are independent. Main appeal of arbitration is the breadth of discretion left to parties and arbitrators to structure the process for the dispute resolution.
- Although judges also have some of these elements, they are not so independent in the sense of ability to choose their own work etc.

X v Mid Sussex Citizens Advice Bureau and others [2012] UKSC- volunteers not covered by equality legislation
FACTS  Is discrimination against volunteers, or some categories of volunteer, on the grounds of disability,
currently unlawful? Appellant has both academic and practical qualification in law and became a volunteer adviser for CAB following an interview in which it was explained there would be no legally binding contract between her and CAB, it was a volunteer agreement 'binding in honour only, not legally binding'
 She was asked to cease volunteering at CAB and claims it amounted to discrimination against her on the grounds of disability.
 Is 'occupation' which is included in Art 3(1)(a) broad enough to cover voluntary work? She said meaning of the Framework Directive is open to reasonable doubt so a reference should be made to
CJEU. What does 'conditions for access to employment, self-employment or occupation' mean?
HELD
 Her argument was rejected.
 'The reference to 'access to occupation' contemplates…access to a sector of the market, rather than to particular employment or self-employment; in that sense, it covers at a higher level the latter two concepts [employed/self employed]'. The word occupation is not being used at the same level as EMPLOYMENT EQUALITY AND DISCRIMINATION LAW
employment/self employment. Voluntary activity not intending to be covered.
 The directives didn't impose an obligation on MS to outlaw discrim as against volunteers, rejected the argument made by the Equality+ HR Commission which said that volunteers were excluded from the final directive coz that 'addition was a mere unnecessary clarification'.
 UKSC weary of difficulties that would come with characterizing voluntary activities which would be covered bythe Framework directive and those which wouldn't .
 Says that access to self-emp or occupation is concerned with discrim from qualifying/setting up asa solicitor, plumber, arbitrator etc.
 Lord Mance (majority, unanimous judgment):
- Directive is not unlimited in scope or extent. Carefully defined protections granted in specified circumstances.
- So 'access to occupation' means access to a sector of the market rather than to a particular post so doesn't envisage voluntary activity.
- Legislative history suggests it was not intended art 3(1)(a) should encompass voluntary wor
- As a result no need to consider scope of principle in either Marleasing or Mangold
BGT contestant not successful, she challenged discrimination but failed. (Czikai v Freemantle Media)

FACTS

HELD

FACTS

HELD

Halawi v WDFG [2015]
She wanted to bring claim of religious discrimination, had to show she was an employee of WDF
(operates retail outlets at airports). She was a beauty consultant, provided her services through an employee controlled company, her own company provided services to a service company and that service company provided management services to WDF. That service company provided services to other cosmetic companies occupying space.
Held she was not an employee, substitution clause in contract found not to be a sham. There was no subordination to WDF. She wasn't subject to their control. Lack of subordination+ integration into
WDF's business. Applying Jivraj she wasn't EE so couldn't apply equality act.
Halawi v WDFG [2015]
Hounga (Nigerian nationality), virtually illiterate, probably came into UK when she was 14, illegally overstayed her visa but was being trafficked to work for Mrs Allen. She was childcarer for Mrs Allen's children, she inflicted serious physical abuse on Ms Hounga and said if she left her house she'd be imprisoned. Allen dismissed her, Hounga raised discrim claims, Allen raised the illegality of her employment as a defence to the claim.
UKSC rejected this, illegality rests on foundation of public policy. While there's a need to preserve integrity of the legal system, considerations of public policy which militate to defeat her complaint scarcely exist.
There is also public policy to stop people trafficking. If courts upheld the defence of illegality then this goes counter to strain of public policy (stopping trafficking).

(ii)
Territorial
 EA silent on this point, leaves it to tribunals to determine whether the law applies e.g depending on the connection b/w the employment relationship and Great Britain.
 Ravat- territoriality of unfair dismissal an equality law claims are identical.
(iii)
Material scope
 Applies across whole chronology of employment relationship- hiring, firing, decisions about whether an individual should be trained, promoted, transferred.
 Also extends to discrimination, harassment or victimisation perpetrated subsequent to the termination of the employment contract or employment relationship:
S39 EA-Employees and job applicants 39 Employees and applicants EMPLOYMENT EQUALITY AND DISCRIMINATION LAW
(1)An employer (A) must not discriminate against a person (B)—
(a)in the arrangements A makes for deciding to whom to offer employment;
(b)as to the terms on which A offers B employment;
(c)by not offering B employment.
(2)An employer (A) must not discriminate against an employee of A's (B)—
(a)as to B's terms of employment;
(b)in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;
(c)by dismissing B;
(d)by subjecting B to any other detriment.
(3)An employer (A) must not victimise a person (B)—
(a)in the arrangements A makes for deciding to whom to offer employment;
(b)as to the terms on which A offers B employment;
(c)by not offering B employment.
(4)An employer (A) must not victimise an employee of A's (B)—
(a)as to B's terms of employment;
(b)in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for any other benefit, facility or service;
(c)by dismissing B;
(d)by subjecting B to any other detriment.
 s.39(7) EA: dismissal is inclusive of a constructive dismissal/ FTC not renewed.
 The meaning of 'detriment' in s.39(2)(d) and 4(d):
Shamoon v RUC [2003] - Whether the reasonable worker, objectively construed, would take the view that the employee had been disadvantaged in the circumstances:
 Lord Hope: 'is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment…it is not necessary to demonstrate some physical or economic consequence'.
 Lord Scott: Need to apply the test from the point of view of the victim (subjective) 'If the victim's opinion that the treatment was to his or her detriment is a reasonable one to hold'
o Although slight difference in opinion, Cabrelli thinks more apparent than real coz they both apply an objective check on the reasonableness of the worker's belief that the ER's conduct or omissions amounted to a detriment.
Grant v HM Land Registry [2011]
 COA held that that a gay employee who disclosed his sexual orientation when he was employed at his employer's Lytham office was not subjected to detriment when he moved to Coventry and a new manager revealed his sexual orientation to work colleagues there against his wishes, in circumstances in which it was clear that the manager concerned did not have a harassive or discriminatory purpose.
 Claimant was unable to establish a justified sense of grievance: although the C may genuinely have considered himself aggrieved, there were no reasonable grounds for so thinking on an objective assessment of the facts and hence no 'detriment' since no ill intent/malice of the new manager.

FACTS

HELD

Moyhing v Barts and London NHS Trust [2006]
Barts hospital said that if a male nurse was doing an intimate procedure on female patient, he needed to have a chaperone with him whereas if a female nurse was doing equivalent procedure to a man she wouldn't need a chaperone.
Direct discrim (so no objective justification), not an occupational requirement for a nurse to be a woman. Detrimental to male nurse.

Job Applicants:
FACTS

Kratzer v Allgemeine Versicherung [2016]
Kratzer was a senior lawyer, he applied for jobs which he wasn't qualified (he was applying for junior jobs but was v senior), when not invited to interview he got rejected then made discrim claims coz EMPLOYMENT EQUALITY AND DISCRIMINATION LAW
ERs settled with him so he kept getting money!
HELD
 CJEU held that discrim legislation isn't made for opportunists like him!
 The applicants needs to be genuinely seeking a job, not just applying with a view to being rejected so he can claim discrimination.


FACTS

HELD

Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v NV Firma Feryn [2009]
What about discriminatory advertising? Owner of a firm went on radio seeking to hire some people to do building work but stated that he didn't want to hire anyone Moroccan because his client didn't like them
No actual job offered but proceedings brought against him. Even though no actual job at that moment offered, CJEU said he would be bound by equality directives. This was directly discriminatory even though there was no identifiable victim.

Ex-employees:
 S108 EqA: concerns 'relationships that have ended' (including employment relationships that have ended).
It states that a person (A) must not discriminate against or harass another (B) if the discrimination or harassment:
 Arises out of and is closely connected to a relationship that used to exist between them; and
 Would, if it had occurred during the relationship, been unlawful.
 This replaced similar provisions in the previous discrimination legislation.
Who is liable?
(iv)
Employers
 S.109 provides for vicarious liability 'anything done by A in the course of A's employment must be treated as also done by the employer' and it does not matter whether the thing is done with the ER's knowledge.
- S109(2): The above also applies for acts done by an agent for a principal with the authority of principal
 S109(4): In proceedings against employer B, it is a defence for B to show that he took all reasonable steps to prevent A from doing that thing or from doing anything of that description.
Issue of what is 'in the course of employment':
Jones v Tower Boot Co. Ltd v Jones [1997]
FACTS  Black employee subject to serious racial harassment from his colleagues. He was burnt w screwdriver, notes saying 'Chipmunks must go' put on his back, legs whipped etc. Sued employer.
 Employer argued not done in course of employment because they were not employed to be racist,
they didn't condone the behavior. So they argued they weren't vicariously liable.
HELD
 ET observed that if this line of argument accepted - there would be no successful claims - more serious the conduct, less likely that employer is going to be responsible for it (ie they'd not condone it). COA agreed.
The employer is not liable for off-duty conduct:
- Waters v Commissioner of Police for Metropolis [1997]- she was female police constable who lived in a female police house. She was off duty when another officer came to her room and allegedly sexually assaulted her - COA held this wasn't done in course of employment.
Third parties
 ER can sometimes be liable for harassment of employees by third parties in prescribed circumstances but general rule is that they won't be liable e.g customers harassing staff, school kids harassing teachers.
The discriminator
 The discriminator will be personally liable (Yeboah v Crofton; now confirmed by s.110 EA).
o Will use when EE racially harasses colleague. ER can show took all reasonable steps. Colleague can still bring claim against EE in tribunal.
o Same for an agent where evidence shows that the authority given to the agent didn't extend to carrying out an authorized act in a discriminatory manner, the person discriminated against can still bring a claim against the agent.

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