A more recent version of these Indirect Discrimination Harassment And Et1 3 Forms notes – written by University Of Law students – is available here.
The following is a more accessble 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:
INDIRECT DISCRIMINATION, HARASSMENT, ET1&3 FORMS INDIRECT DISCRIMINATIONEligibility - within 3 months of actUnlawful Act - discrimination in recruitment, promotion, dismissal, harassment, or post-employmentIndirect Discrimination
* has respondent applied a PCP which applies to all equally?
* does the PCP create a disadvantage to persons of one group compared
* has the claimant suffered a disadvantage?Justification - can the respondent show that the PCP is a proportionate means of achieving a legitimate aim?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
STATE CLAIM BEING MADE - INDIRECT DISCRIMINATION
ELIGIBILITYUNLAWFUL ACTSUnlawful discrimination in of the employmentthe field against job
? Continuing act discrimination, three months doapplicants not start to run and employees is prohibited by ss 39 and 40 of the Act. until the discrimination ceases. TIME LIMITS
UNLAW FUL ACTS
A complaint should be made to an employment tribunal within three months (-1 day for date) of the act complained of or such other period as the tribunal thinks just and equitable (s 123).RECRUITME?
Under s 39(1) of the Act: consists of a failure to do something, the Where the discrimination An employer (A) not discriminate against a person time limit starts must to run when the person decides not to (B)---
do the thing in a) in the arrangements A makes for deciding to whom to offer question. employment; b) as to the terms on which A offers B employment; s 212(2) and (3) a B reference to an act includes a reference to an c) by not offering employment. omission; and a reference to an omission includes a reference to: 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 a) a deliberate omission to do something; of determining who should be offered employment (interview) in the refusal do it;employment and by refusing or deliberately termsb) onawhich hetooffers c) a failure to do it. omitting to offer that person employment.
'If the refusal to offer employmentfrom wasone-off based on
[PROTECTED Continuing acts are distinguishable acts that have continuing CHARACTERISTIC]
it will be an unlawful act based a protected consequences; time will run from the date of the one-offon act complained of. characteristic. [PROTECTED CHARACTERISTIC] is a protected under s.10 Equality Act 2010 and the failure to offer o characteristic Employees s.39 employment based o Job applicants s.39on a protected characteristic is unlawful under s.39(1)(c) Equality Act 2010.' o contract workers s.41 PROMOTION Under s 39(2) of the Act: WHO IS o Office holders s.50 employer (A) must not discriminate against an employee of A's (B)---
AND PROTECT o An Trade Union members s.57 a) as to B's terms of employment; DISMISSAL ED o Employees ended b) in theafter way employment A affords B has access, or s.108 by not affording B access, to o s.83(2)opportunities
- employment for is contract of employment, promotion, transfer apprenticeship or training oror for contract personally to do work. Wider than ERA 1996 receiving any other benefit, facility or service;
? 'The Act protects employees under S39. c)Equality by dismissing B;
is able to make a claim as [he/she]
is an employee (British d) by subjecting B to any other detriment. PRECEDE Airways Plc v Mak and others). NT is unlawful for anbe employer to discriminate againstofanthe employee
? ItThe claim must brought within 3 months act of in the way he affords him/her access to opportunities of promotion, transfer or training discrimination.
? There is no requirement of continuous employment.
[He/She] was [questioned] on [DATE] and would have to bring claim by '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(c)) Equality Act 2010.'
? Section 108 prohibits discrimination after the employment relationship has ended.
EMPLOYME NT DISCRIMINA TION??
SUBJECTING A PERSON TO DETRIMENT
INDIRECT RELIGIOUS DISCRIMIN ATIONWhere 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
Common employment practices which may indirectly discriminate employees on the grounds of religion or belief:
1. Dress codes - imposing a dress code on all employees may cause problems for employees who wish to adopt a particular form of dress for religious reasons
2. Hours of work and rest breaks - members of some religions are required to pray at certain times and/or observe the Sabbath from a particular hour on a Friday. Imposing scheduled rest breaks or a requirement to work late in the evening may indirectly discriminate against members of certain religions
3. Working days and holidays - by placing restrictions on when employees can take holiday may conflict with their religious holidays and may therefore indirectly discriminate on the grounds of religion or belief
4. Canteen and food storage facilities - some religions have strict dietary rules so any arrangements for food storage should be made with this in mind
5. Recruitment - word of mouth recruitment where the existing workforce is largely of a particular religion or belief could indirectly discriminate against persons of other religions or beliefs
TYPES OF CLAIM?DIRECT DISCRIMINATION (s.13) COMBINED DISCRIMINATION (s. 14) Claims related to all the protected characteristic except:
1. pregnancy and maternity
2. Marriage/civil Only for combinations of two of the characteristics
PROHIB ITED CONDUC T?Not clear when the claim appropriate
? Acts explanatory note is should be make 'where a single-strand approach may not succeed' Comparator needed
? Will the comparator have to reflect both protected characteristics INDIRECT DISCRIMINATION (s.19) HARASSMENT (ss.26 & 40) VICTIMISATION (s.27)
INDIRECT DISCRIMINATION s.19 Indirect discrimination occurs when there is equal treatment of all groups but the effects if the provision, criterion or practice imposed by an employer has a disproportionate adverse impact on one group, unless the requirement can be justified (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if---
(a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.INDIRECT DISCRIMIN ATIONOnce, you have established an unlawful act you must then decide whether there has been "indirect discrimination" based on a protected characteristic: Age (s.5) Disability (s.6) Gender reassignment (s.7) Race(s.9) Religion or belief (s.10) Sex (s.11) Sexual Orientation (s.12)
1. The respondent must apply a Provision, Criterion or Practice to all persons irrespective of protected characteristic.(PCP)Provision, criterion or practice - covers both formal/informal working practices. It can be a contractual provision (essential) or simply a desire of the employer.
's.19 Indirect discrimination occurs when there is equal treatment of all groups but the effects if the provision, criterion or practice imposed by an employer has a disproportionate adverse impact on one group, unless the requirement can be justified.
[?] In this case the employer has applied a criterion or practice to all
[applicants for this post/persons], that is, it needs them to [work late on Fridays/late shift].
[?] If [name] is to succeed, [she/he] will need to show that the provision puts
[THE GROUP] at a particular disadvantage when compared to [other applicants/men/employees] and that provision put [him/her] at a disadvantage.
[?] As persons of the [GROUP] are unable to [work late on Fridays during the winter months] they are unlikely to [be appointed to the post/be able to work], as she [was not appointed/cannot work those hours], it would appear that the provision put [NAME] at a disadvantage.'
2. The provision must put persons of a protected characteristic at a particular disadvantage when compared with others.Particular disadvantage : Claimant must show that the provision is to the detriment of his or her groupEstablishing a "pool" of comparison - The claimant must establish a "pool" of persons that are affected by the provision. This could be the entire workforce, all applicants for the job, etc.Ultimately it is the tribunal who decides on the correct pool.What to do with pool? - The claimant then calculates how many of those within the "pool" (Group 1) who are of the same sex, race or age as the claimant can comply with the provision. You compare this number with those who are not the same sex or race as claimant (Group 2):London Underground v Edwards (a) If there is a difference of more than 5% - there is indirect discrimination. (b) If there is difference of less than 5% - there is no direct discrimination, except where sociological evidence suggest otherwise. Sociological Evidence - Even if there is a difference of less than 5%
within the pool the tribunal may still find for "direct discrimination" if national statistics suggest that those within claimant's sex or race are more likely to be put at a disadvantage than those who are not London Underground v Edwards .3. The provision must be to the claimants disadvantageThis is demonstrated by the claimant showing that they cannot comply with the provision and so the provision places them at a detriment.Detriment - an unjustified sense of grievance cannot amount to a detriment but it is not necessary to demonstrate some physical or economic consequence.
[?] 'We will need evidence to prove that persons of the [GROUP] are at a 'particular disadvantage' when compared to [other applicants/men].
[?] The pool for comparison is all those who, apart from the alleged discriminatory requirement [(the reason)] are [qualified for the post/are able to work the hours] in question.
[?] If within that pool the requirement places persons of [THE GROUP] at a disadvantage when compared to [persons of other or no religion/men], the claim will be made out.
[?] However, the tribunals are moving away from a strict statistical approach requiring specific pools for comparison and are more inclined to take into account wider national statistics and sociological evidence (London Underground v Edwards).
[?] This shift may help [NAME], [particularly if the above statistics do not support [his/her] claim. Some tribunals will simply accept the view that
[care for children (and elderly) impacts women more than men] and will not require statistical evidence - but sociological trends may change and it is best to check. The [requirement to work long hours] caused [NAME] difficulty with [childcare]
and [he/she] was [dismissed/not promoted]. It is [likely/unlikely] that the test for indirect discrimination will be satisfied with regard to the [PROTECTED CHARACTERISTIC] claim. Once the claimant has shown facts that "indicate a possibility" that the above 3 conditions have been passed, the burden of proof then shifts to the employer to justify their actions...see next box...
BURDEN The burden of proof is a two stage test (Madarassy). s.136 provides that where a complaint can establish facts from which a tribunal could decide that there has been a contravention of a provision of the EA 2010, the tribunal must find unlawful discrimination, unless the employer shows that it did not contravene the provision. Under Igen v Wong [NAME] must prove, on the balance of probabilities, facts from which a tribunal could conclude, in the absence of an adequate explanation that [his/her] [EMPLOYER]
has discriminated against [HIM/HER] (Barton v Investec).
POTENTIAL DEFENCE: JUSTIFICATION The respondent must try show that the provision, criterion or practice is a proportionate means of achieving a legitimate aim to justify the discrimination... (s.19(2)(d))
BURDE N OF PROOF s.19(2) (d)Balance - The tribunal will carry out a balancing exercise between the degree of discrimination caused and the aim/objective to be achieved.Employer has to show a legitimate aim (e.g. business efficacy) (Cobb v Employment Secretary)'Appropriate and necessary test': They must then show that there was no other way to achieve this aim that avoided the indirect discrimination.The employer must show that he benefit of having the provision outweighs the disadvantage caused to the claimant.They are entitled to rely on the cost of changing the offending provision,
criterion or practice when justifying their actions (Cross and others v BA)
[?] 'The employer may attempt to prove that the provision is a proportionate way of achieving a legitimate aim.
[?] The tribunal will look to see if there were other ways, less discriminatory, to achieve the employer's aim - for example [how important is the nightshift/do they need everyone to work the shift pattern/could some people opt out?].
[?] If the [change in hours/figures from US] are necessary to the business and need to be worked on [immediately/at certain times] by all the staff, then the employer may not be able to agree to [NAME] request, and it may be a proportionate way of achieving a legitimate aim.
[?] To decide whether or not it is proportionate the tribunal will balance the employer's needs with the discrimination suffered by [NAME] for [the position/late hours].
[?] There is the possibility the defence may succeed.'
CONCLUSION: 'In conclusion, on the facts and legal tests,
[EMPLOYEE] is likely to succeed in a claim for indirect discrimination' VICARIOUS LIABILITY
IS THE EMPLOYER VICARIOUS LY LIABLE FOR THE ACT OF DISCRIMIN ATION WHICH LED TO THE CLAIM?
's.109 employer is vicariously liable for acts of discrimination by his employees during the course of their employment (Jones v Tower Boot Co Ltd/Chief Constable of the Lincolnshire Police v Stubbs). This is so whether or not the acts were done with the employer's knowledge or approval. However, it is a defence for the [EMPLOYER] if they can show that they took such steps as were reasonably practicable to prevent an employee doing the act complained of (s.109(4)). On the facts, [EMPLOYER]...
COURSE OF EMPLOYM ENT
Jones?v Tower Boot Co Ltd (1997) Racial abuse - physical EAT found for employers as couldn't consider it authorized CA reversed this - 'course of employment' should be interpreted in sense of every day speech and not restrictively Chief Constable of the Lincolnshire Police v Stubbs
? Social gatherings immediately after work or organised leaving party does count Sidhu v Aerospace Composite Technology
? family day out organised by employer had not taken place 'in course of employment'
? public space, attended in own time, majority family and friends Section 109(4) sets out the 'reasonably practicable' defence: Employer took all reasonable steps to prevent employee: a. from doing that thing, or b. from doing anything of that description
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