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Direct Discrimination Notes

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This is an extract of our Direct Discrimination document, which we sell as part of our Employment Law Notes collection written by the top tier of University Of Law students.

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DIRECT DISCRIMINATIONEligibility - within 3 months of discriminatory actUnlawful Act - discriminated in recruitment, dismissal, promotion, harassment, or post-employmentClaim Type - can be cause for more than one type of discrimination claimDirect Discrimination

* claimant has received less favourable treatment due to a protected characteristic
* burden of proof initially on claimant - must provide evidence which proves to tribunal that the treatment was a result of the protected characteristic
* burden of proof is then passed to R - must show that the treatment was nothing to do with the protected characteristic
* exception - is there an occupational requirement or exception?Vicarious Liability - employer is liable for employees' discriminatory behaviour unless tried to stop or prevent the discrimination by all reasonable means possibleRemedies
* declaration of employee rights
* employer recommended to take action to ease ramifications of the discrimination (both on claimant and other employees)
* compensation (no max)
# monetary losses
# aggravated damages for insulting, aggressive, or malicious behavior
# injury to feelings
# mental or physical injury
# possible exemplary damages

# may be increased/decreased for unreasonable failure to comply with ACAS

EQUALITY ACT 2010
? Eligibility (CE not required)
? Time Limit - within 3 months of discriminatory act (may be longer if tribunal decides just and equitable to extend - s123)
? Has there been an unlawful act?
? Was it based on a protected characteristic (or several)?
* Age, disability, gender reassignment, marriage/cp, pregnancy/maternity, race, religion/belief, sex, sexual orientation
? Burden of Proof - s136; see Igen v Wong
? Which claim is appropriate (may be multiple)?
* Direct/combined (s13, s14)
* Indirect (s19)
* Harassment (s26, s40)
* Victimisation (s27)
* Disability; failure to make reasonable adjustments (s20, s21)
* Disability; discrimination arising from disability (s15)
? Is there an exception or specific defence to the claim within the act?
? Does the employer have vicarious liability for the discrimination?
? Remedies
* declaration of claimant and respondent rights

* employer recommended to take action to ease ramifications of the discrimination (both on claimant and other employees)
* compensation (no max)
# monetary losses, injury to feelings
#

may be increased/decreased for unreasonable failure to comply with ACAS code of practice

STATE THE CLAIM BEING MADE - DIRECT DISCRIMINATION

ELIGIBILITY Direct discrimination occurs where the reason for a person being treated less favourably than another is a protected characteristic listed in s 4 of EA 2010.

UNLAWFUL ACT? A complaint should be made to an employment tribunal within three Unlawful discrimination in for thedate) employment against applicants months (-1 day of the act field complained of job or such other period as is the tribunal thinks (s 123 EA 2010). and employees prohibited by ssjust 39 and and equitable 40 EA 2010.TIME LIMITS

ELIGIB ILITYRECRUITME NT

Continuing act of discrimination, the three months do not start to run Under s 39(1) EA 2010ceases. until the discrimination An employer (A) must not discriminate against a person (B)---
a) inthe thediscrimination arrangements A makes for deciding to whom the to Where consists of a failure to do something, offer employment; time limit starts to run when the person decides not to do the thing in b) as to the terms on which A offers B employment; question. c) by not offering B employment.

Its is212(2) unlawfuland for an employer to a discriminate a person
- in the way that heto (3) EA 2010 referenceagainst to an act includes a reference advertises the job, in arrangements made for the purpose of determining who an omission; and a reference to an omission includes a reference to: should be offered employment (interview) in the terms on which he offers employment and by refusing or deliberately omitting to offer that person a) a deliberate omission to do something; employment. b) a refusal to do it; a failure do it. 'If the c) refusal to offerto employment was based on [PROTECTED CHARACTERISTIC] it will be an unlawful act based on a protected characteristic.
[PROTECTED is from a protected characteristic under continuing s.10 Continuing acts CHARACTERISTIC]
are distinguishable one-off acts that have Equality Act 2010 and the failure to offer employment based on a protected consequences; time will run from the date of the one-off act complained of. characteristic is unlawful under s.39(1)(c) Equality Act 2010.' Under s 39(2) EA 2010 Where there are (A) two must possible with distinctive time limits, it of is PROMOTION An employer not claims discriminate against an employee advisable to run the time from the earliest allegation/incident to avoid AND A's (B)---
the time limits. DISMISSALbeing outside a) as to B's terms of employment; b) in the way A affords B access, or by not affording B access, o Employees s.39 to opportunities for promotion, transfer or trainings.39 or for receiving any other benefit, facility or o Job applicants service; o contract workers s.41 c) by dismissing B; WHO IS o Office holders s.50 d) by subjecting B to any other detriment. PROTECT o Trade Union members s.57 ED o Employees after employment has ended s.108 It is unlawful for an employer to discriminate against an employee in the way he o s.83(2) - employment is contract of employment, apprenticeship or affords him/her access to opportunities of promotion, transfer or training contract personally to do work. Wider than ERA 1996
? PROMOTION 'The Equality Act protects employees under S39. [NAME] is able to make a claim as [he/she]
is anwas employee Airways Plc v Mak 'If the refusal to grant a promotion based on(British
[PROTECTED PRECEDE and others). CHARACTERISTIC]
it will be an unlawful act based on a protected characteristic. NT
? [PROTECTED The claim must be brought within monthscharacteristic of the act ofunder s.10 CHARACTERISTIC]
is a 3protected discrimination. Equality Act 2010 and the failure to offer a promotion based on a protected characteristic is unlawful under s.39(2) Equality Act 2010.'UNLAW FUL ACTS

DISMISAL 'If the dismissal of employment was based on [PROTECTED CHARACTERISTIC]
it will be an unlawful act based on a protected characteristic. [PROTECTED CHARACTERISTIC] is a protected characteristic under s.10 Equality Act 2010 and the dismissal of employment based on a protected characteristic is unlawful under s.39(2) Equality Act 2010.'

POST EMPLOYME NT DISCRIMINA TION??HARASSMEN T

SUBJECTING A PERSON TO DETRIMENTSection 108 EA 2010 prohibits discrimination after the employment relationship has ended. Where an employment relationship has come to an end, it is unlawful for the employer to discriminate against the former employee; or By harassing the former employee where the discrimination arises out of and is closely connected to that former relationship. This covers employee references It is unlawful for an employer to subject an employee or a job applicant to harassment. 'If the harassment of an employee or job applicant was based on
[PROTECTED CHARACTERISTIC] it will be an unlawful act based on a protected characteristic. [PROTECTED CHARACTERISTIC] is a protected characteristic under s.10 Equality Act 2010 and harassment based on a protected characteristic is unlawful under s.39 Equality Act 2010'
? Ignoring Paul's explanation for flexi-time
? No disciplinary procedure followed - he was immediately dismissed

TYPE OF CLAIMPROHIB ITED CONDUC T?DIRECT DISCRIMINATION (s.13) occurs where the reason for a person being treated less favourably than another is due to a protected characteristic listed in s.4 of the Act. INDIRECT DISCRIMINATION (s.19) HARASSMENT (ss.26 & 40) VICTIMISATION (s.27) She has indicated she doesn't want to leave. If she did, she could be able to make a claim for constructive dismissal for a repudiatory breach and a further claim for wrongful and unfair dismissal. She is claiming she was treated less favourably because of her sex s 11. She is a woman and she has been treated less favourably than others (s 13).
[EMPLOYER} treats{CLAIMANT] less favourably than or would treat others.

DIRECT DISCRIMINATION

1. HAS C BEEN TREATED DIFFERENTLY AND' LESS FAVOURABLY' BECAUSE OF A PROTECTED CHARACTERISTIC????Gender reassignment (s.7) Marriage and civil partnership (s.8) Race (s.9) Religion or belief (s.10) Sex (s.11) Sexual orientation (s.12) Pregnancy and maternity (s.18)

Objective test as to whether the complainant would have been treated:

o differently; and o more favourably, had it not been because of sex, race, religion or belief, sexual orientation, gender reassignment or marital/civil partnership status. o o DIRECT DISCRIMIN ATION

o o

Less favourable treatment covers any 'disadvantage' (Jeremiah v MOD)
[WHAT IS THE DISADVANTAGE?]
It does not require any tangible loss (Chief Constable of West Yorkshire Police v Khan) A mere deprivation of choice will be sufficient to found a claim of less favourable treatment (Gill v El Vino Co) Less favourable treatment is for the tribunal to decide
? If an employer recruits a man rather than a woman because she assumes that women do not have the strength to do the job, this would be direct sex discrimination.
? Hilary has been asked questions relating to her family circumstances when a man may not have been and she has not been given the job that she has deputized for in the past. She believes that this is because of her sex

'[EMPLOYEE] will need to show that they have been treated differently and less favourably because of their [PROTECTED CHARACTERISTIC]. On the facts, [EMPLOYEE] was treated less favourably...
ASSOCIATION AND PERCEPTION
? Protected characteristic listed in s 4 (save in the case of marriage and civil partnership) is broad enough to cover cases where the less favourable treatment is because of the victim's association with someone who has that characteristic (eg, is black) (association), or because the victim is wrongly thought to have it (eg, a particular religious belief) (perception).
? If A treats B less favourably because B cares for an elderly relative, A can be held to have discriminated against B because of age, even though B's age is not the reason for the treatment.

2. NEED ACTUAL OR HYPOTHETICAL COMPARATOR (Shamoon) To establish less favourable treatment the claimant must be compared with that of an actual or a hypothetical person (Shamoon) - the comparator - who does not share the same protected characteristic as the claimant but who is (or is assumed to be) in not materially different circumstances from the claimant. In [NAME] case there is [no?] actual comparator as [NAME] has different experience in the job and company (he has been there 6 months and has not worked in the same department) [any further facts?]. Where there is no actual comparator, a hypothetical comparator will normally be required (Shamoon).
[NAME] will need to use a hypothetical comparator. [She/he] will compare
[his/her] treatment with a [male/female/black/white etc] employee with the

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