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Equality In Employment Notes

LPC Law Notes > Employment Law Notes

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A more recent version of these Equality In Employment 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:

Equality in employment Protected characteristics Section 4 Equality Act 2010Age (s5) Disability (s6) Gender reassignment (s7) - proposing to undergo, has undergone or is undergoing a reassignment process Marriage/civil partnership (s8) - engaged is not sufficient, divorced/dissolved not protected Race (s9) - colour, nationality ethic or national origins, racial groups (Jews race and religion) Religion/belief (s10) - religious group, lack of religious belief, or having beliefs - must be genuinely held Sex (s11) Sexual orientation (s12) Pregnancy/maternity (s18)

Types of discrimination claims
??? ? Direct discrimination
??? ? Indirect discrimination
??? ? Harassment
??? ? Victimisation
??? ? Instructing, causing, inducing or helping discrimination Unlawful acts
??? ? Discrimination in:
- Recruitment
- Promotion
- Dismissal
- Harassment
- Post-employment matters
- Subjecting person to a detriment

Direct Discrimination ("DD")
?? ? ?Eligibility Time limit = 3 months from act of discrimination - just needs to give written notice to employer of intent to bring claim no need to commence
?? ? ?Unlawful act Discrimination in:
? Recruitment
? Promotion
? Dismissal
? Harassment
? Post-employment matters
? Subjecting person to a detriment
?? ? ?Protected characteristic?
? Identify the Protected characteristic ("PC") (e.g. sex, disability, age, pregnancy)
? Have they been treated differently/less favourably?
?? ? ?Covers any disadvantage - does not require a tangible loss
?? ? ?Deprivation of choice is sufficient
?? ? ?Assumptions based on stereotype can be DD
?? ? ?Objective test: whether the complainant would have been treated differently and more favourably had it not been for the PC (i.e. the reason for the treatment must have been the PC) o If PC was at least one of the reasons for treatment = DD
? Actual/hypothetical comparator - a person who does not share the same PC as the complainant, but who is (or assumed to be) not materially different from them - if the comparator has (or would have been) treated differently to the complainant, they have been treated less favourably.
?? ? ?Where a suitable comparator is not available, the court will use the hypothetical comparator
? Reason why question - why was the complainant treated as he was?
Was the treatment because of the PC? - important but only on the facts (not the motive itself)Burden of proof?
o Shifting burden of proof
? Burden on claimant to show the facts that point to a breach of the Equality Act (balance of probabilities)
? Burden on the respondent to show there was not a breach and offer an explanation (remember: no defence to DD)- subjective nondiscriminatory reason for why they acted as they didOccupational requirement exception?

Having regard to the nature/context of the work, it will not be DD if it can be shown that there is an occupational requirement for the act. o Requirement must be crucial to the post o Must not be a sham or pretext o Must be a proportionate means of achieving a legitimate aim o Must be necessary for proper performance of the post
? i.e. authenticity (black actors for black role),privacy/decency (same sex), public safety (culture or conflict) NO DEFENCE o?

Vicarious liability?
Employer will be liable for the acts of its employee unless it took all reasonably practicable steps to stop or avoid the discrimination - DEFENCE to vicarious liability only (not to the DD itself) (Jones v Tower Boot Co / CC of Lincolnshire Police v Stubbs) (s109(4))Remedies
? Declaration of employee rights (like a judgment)
? Recommendations (only in relation to that employee - cant give power to promote)
? Compensation (no max)
? Pecuniary losses - loss arising from the DD itself (put the C in position he would have been had it not been for the DD)
? Aggravated damages - only where employer acted in high handed, malicious or insulting or oppressive manner
? Injury to feeling - almost inevitable - compensatory in nature
? Vento bands o lower band (min PS500 max PS6,600) - isolate incidents, less serious o middle band (min PS6,600 max PS19,800) - serious cases not meriting top o upper band (min PS19,800 max PS33,020) - only to most serious cases
? example: Lokhova v Sherbank - awarded PS4.5m and
PS3.2m in DD and harassment claim
? Psychiatric/physical injury - compensation for any physical or mental injury caused by the DD - need medical evidence - risk of double recovery for injury to feeling/psychiatric
? Exemplary damages - rare - arbitrary and outrageous use of executive power - most serious only
? Deductions for: accelerated receipt, contributory act (also deduction for any overlapping claims)
? Tribunal may award interest at ET rate = 8%
? ACAS 25% increase/decrease

Indirect Discrimination

1. Eligibility

Time limit = 3 months from act of discrimination - just needs to give written notice to employer of intent to bring claim no need to commence

2. Unlawful act Discrimination in:
? Recruitment
? Promotion
? Dismissal
? Harassment
? Post-employment matters
? Subjecting person to a detriment

3. Protected characteristic
? ? ? ? PCP (provision, criterion or practice) o Covers formal and informal working practices o Allows for examination of policies and working practices that do not operate as absolute requirements for the role (e.g. working hours, recruitment selection, promotion) o PCP must apply equally to allEmployee at particular disadvantage compared to others?
o Complainant must show that the PCP is a disadvantage to his group o Pool of comparison? - pool must be people with the same characteristics as the C (wrong pool = error in law)Has C suffered a disadvantage?
o Must suffer a disadvantage and show that the PCP caused that disadvantage o Disadvantage must arise in the employment field o Examples - not getting promoted or being dismissed

4. Defence
? Can Employer show the PCP was a proportionate means of achieving a legitimate aim? = DEFENCE
? Balancing exercise between degree of discrimination and object/aim to be achieved taking into consideration all the circumstances
? 'proportionate' = appropriate and necessary (Homer v CC West Yorkshire Police)
? Is there another way around the issue rather than the action taken? Yes =
No defence
? Burden of proof - on the employer to show that there is cogent evidence that the justification defence is made out

5. Remedies
? Declaration of employee rights (like a judgment)
? Recommendations (only in relation to that employee - cant give power to promote)
? Compensation (no max)
? Pecuniary losses - loss arising from the DD itself (put the C in position he would have been had it not been for the DD)

????

Aggravated damages - only where employer acted in high handed, malicious or insulting or oppressive manner Injury to feeling - almost inevitable - compensatory in nature
? Vento bands o lower band (min PS500 max PS6,600) - isolate incidents, less serious o middle band (min PS6,600 max PS19,800) - serious cases not meriting top o upper band (min PS19,800 max PS33,020) - only to most serious cases
? example: Lokhova v Sherbank - awarded PS4.5m and
PS3.2m in DD and harassment claim Psychiatric/physical injury - compensation for any physical or mental injury caused by the DD - need medical evidence - risk of double recovery for injury to feeling/psychiatric Exemplary damages - rare - arbitrary and outrageous use of executive power - most serious only Deductions for: accelerated receipt, contributory act (also deduction for any overlapping claims) Tribunal may award interest at ET rate = 8%
ACAS 25% increase/decrease

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