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LPC Law Notes Employment Law Notes

Ws5 Equality In Employment Part 1 I Tutorial Notes

Updated Ws5 Equality In Employment Part 1 I Tutorial 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...

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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:

INTRO
THE DISCRIMINATION CLAIM

  • HAS THERE BEEN AN UNLAWFUL ACT BASED ON ONE OR MORE OF THE PROTECTED CHARACTERISTICS?

    • May be the refusal to hire a particular applicant; subjecting an employee to detriment such as refusing him a pay rise or selecting him for dismissal

    • Treatment will only be unlawful if it is due to one of the protected characteristics…

    • So if the reason for an employee’s dismissal was his racial origin or sexual orientation, that selection will be unlawful – the protected characteristics are linked and operate together to establish discrimination

  • WHICH OF THE EQUALITY ACT 2010 CLAIMS IS APPROPRIATE?

    • Possible for one unlawful act to form more than one claim

  • DOES THE ACT PROVIDE AN EXCEPTION OR SPECIFIC DEFENCE TO THE CLAIM?

    • For some claims there are specific exceptions and defences; example – in claims of direct discrimination the employer may be able to prove that the alledged discrimination is covered by the genuine occupational requirement exception… and for claims of indirect discrimination, defence of justification

    • Claims for harassment and victimisation – no specific defences available to the employer

  • IS THE EMPLOYER VICARIOUSLY LIABLE FOR THE ACT OF DISCRIMINATION WHICH LED TO THE CLAIM?

    • Most acts are not committed by an employer but by a colleague; e.g. bullied on grounds of race or denied a promotion on grounds of sex

    • Employer is liable if the act are carried out in the course of employment

    • Employer can defend all discrimination claims on the basis that they aren’t vicariously liable for the discrimination, they can argue that it was outside the course of employment (‘frolic of his own’) or that he has taken all reasonable steps to ensure that the discrimination didn’t occur and shouldn’t be held liable

  • IF THE CLAIM IS SUCCESSFUL…

  • WHAT ARE THE APPROPRIATE REMEDIES FOR THE CLAIM BEING MADE?

    • EA2010 – tribunal can make a declaration as to the rights of the parties, make an order for compensation, and make a recommendation of steps to be taken to reduce the effect of the discrimination
EQUALITY ACT 2010 – UNLAWFUL ACTS & PROTECTED CHARACTERISTICS

  • ELIGIBILITY

  • EA2010 applies to:

  • IDENTIFY THE UNLAWFUL ACT

    • In recruitment – how the job is advertised; how the interviews are carried out; the terms on which the job is offered; refusing certain people

    • During employment –

    • Unlawful to victimise an employee for enforcing their rights under the EA 2010

    • Harassment of an employee is also an unlawful act

  • IS THE REASON FOR THE TREATMENT ONE OF THE PROTECTED CHARACTERISTICS?
ACTIVITY 1 – PROTECTED CHARACTERISTICS - AGE

Very far reaching… important exceptions:
EA 2010 – PROTECTED CHARACTERISTICS

  • GENDER REASSIGNMENT

Explanatory notes: “a person born physically female decides to spend the rest of her life as a man. He defies not to seek medical advice and successfully passes as a man without any medical intervention. He would be undergoing gender reassignment for purposes of the Act.”

  • MARRIAGE AND CIVIL PARTNERSHIP

The latter could potentially be indirect discrimination but the employer could objectively justify it

  • RACE

Needed a thorough review in EA2010…

Can be problems in determining whether a person is of a particular ethnic origin:

  • RELIGION OR BELIEF

It will be up to the tribunal whether to determine something is a valid belief or not

Take into account factors such as collective worship, clear belief system, profound belief affecting way of life… climate change belief was cogent, serious, coherent and worthy of respect in a democratic society… therefore it is a belief that should be protected.

Exceptions in 9.1

  • SEXUAL ORIENTATION
ACTIVITY 2 – PROTECTED CHARACTERISTICS - RACE

Charles is FALSE because Rastafarianism is a belief, so he would not bring the claim under RACE but instead RELIGION OR BELIEF
EQUALITY ACT 2010 – THE BURDEN OF PROOF

  • S.136
EQUALITY ACT 2010 – DISCRIMINATION CLAIMS

  • Having identified an unlawful act based on a protected characteristic… the next step is to decide which of the equality Act claims will be the appropriate ones to make

  • Information regarding each claim:
VICARIOUS LIABILITY

  • Respondent has two options in regards to defending the claim:

    • Use any specific defence available in relation to particular claim made (e.g. proportionate means of achieving legitimate aim in indirect discrimination cases (objective justification)) (e.g.2 in direct discrimination, employer can argue that their treatment came within the occupational requirement exception in Sch.9 Act)

    • Argue that they are not vicariously liable for the treatment

  • VICARIOUS LIABILITY

  • Acts of discrimination will sometimes be committed by employer (e.g. ‘successful applicant must be...

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