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LPC Law Notes Employment Law Notes

Direct Discrimination Notes

Updated Direct Discrimination Notes

Employment Law Notes

Employment Law

Approximately 388 pages

A collection of the best LPC Employment notes the director of Oxbridge Notes (a former Oxford law graduate) could find in 2014 after combing through seventeen LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of Employment Law notes available in the UK this year. This collection of notes is full...

Available here

The following is a more accessible plain text extract of the PDF sample above, taken from our Employment Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Direct discrimination

  • Eligibility within 3 months of discriminatory act

  • Unlawful Act discriminated in recruitment, dismissal, promotion, harassment, or post-employment

  • Claim Type can be cause for more than one type of discrimination claim

  • Direct 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 possible

  • Remedies

    • 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

Unlawful act

unlawful acts

  • Unlawful discrimination in the employment field against job applicants and employees is prohibited by ss 39 and 40 EA 2010.

RECRUITMENT

Under s 39(1) EA 2010

An employer (A) must not discriminate against a person (B)—

  1. in the arrangements A makes for deciding to whom to offer employment;

  2. as to the terms on which A offers B employment;

  3. by not offering B employment.

It is unlawful for an employer to discriminate against a person – in the way that he advertises the job, in arrangements made for the purpose of determining who should be offered employment (interview) in the terms on which he offers employment and by refusing or deliberately omitting to offer that person employment.

‘If the refusal to offer 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 failure to offer employment based on a protected characteristic is unlawful under s.39(1)(c) Equality Act 2010.’
PROMOTION AND DISMISSAL

Under s 39(2) EA 2010

An employer (A) must not discriminate against an employee of A’s (B)—

  1. as to B’s terms of employment;

  2. 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;

  3. by dismissing B;

  4. by subjecting B to any other detriment.

It is unlawful for an employer to discriminate against an employee in the way he affords him/her access to opportunities of promotion, transfer or training

PROMOTION

‘If the refusal to grant a promotion 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 failure to offer a promotion based on a protected characteristic is unlawful under s.39(2) Equality Act 2010.’

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 EMPLOYMENT DISCRIMINATION

  • Section 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
HARASSMENT

  • 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’
SUBJECTING A PERSON TO DETRIMENT

  • Ignoring Paul’s explanation for flexi-time

  • No disciplinary procedure followed – he was immediately dismissed

Type of claim

PROHIBITED CONDUCT

  • Direct discrimination (s.13) occurs where the reason for a person being treated less favourably than another is due to a protected characteristic...

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