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Summary DIRECT DISCRIMINATION - Employment Law Revision Notes (ULaw Workshop 5)
DISTINCTION ACHIEVED Direct discrimination notes Workshop 5 ULaw reading list - summarised into revision notes
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Direct DiscriminationEquality Act 2010
General common law rule: an employer is free to offer employment to whomever he chooses
(Allen v Flood and Taylor 1898). HOWEVER, this common law freedom has been restricted
by statute.
STEP 1: IS THE CLAIMANT ELIGIBLE TO BRING A CLAIM?
• The Act protects, amongst others:
» Employees (s39)
» Employees after their employment has ended (s108)
» Job applicants (s39).
» Contract workers (s41)
» Office holders (s50)
» Trade union members (s57)
» Employees whose employment has ended (s108).
s83(2): defines ‘Employment’ as “employment under a contract of employment, a contract of
apprenticeship or a contract personally to do work”
**No length of service requirement
Time Limit: 3 months (LESS A DAY) from the date of the unlawful act (s123(1)).
The Tribunal has discretion to extend the time period if it thinks it “just and equitable”
(123(1)(b))
, STEP 2: IDENTIFY THE RELEVANT PROTECTED CHARACTERISTIC
s4 sets out the certain ‘protected’ characteristics:
Age (s5); ¾ The Explanatory Notes give the following examples:
• An age group would include ‘over fifties’ or twenty-one year olds.
• A person aged twenty-one does not share the same characteristic of age with ‘people in their forties’.
However, a person aged twenty-one and people in their forties can share the characteristic of being in
the ‘under fifty’ age range.
Disability (s6 and Sch ¾ Unless the parties agree that a claimant is a disabled person at the relevant time, the burden of proof is on the
1); claimant to show that they were a disabled person.
¾ A person has a disability, therefore, if he has:
• a physical or mental impairment, which has
• a substantial and
• long-term adverse effect on his ability to carry out
• normal day-to-day activities (s 6(1))
¾ A ‘disabled person’ means a person who has a disability (s 6(2))
Gender reassignment ¾ I.e. someone who is proposing to undergo, has undergone, or is undergoing gender reassignment
(s7); ¾ There is NO requirement of being under medical supervision
*8.2.5
Marriage and civil ¾ DOES NOT include those who are single and cohabiting
partnership (s8); *8.2.6 ¾ The Explanatory Note gives examples:
§ A person who is engaged to be married is not married and therefore does not have this protected
characteristic.
§ A divorcee or a person whose civil partnership has been dissolved is not married or in a civil
partnership and therefore does not have this protected characteristic.
Pregnancy and ¾ Protects a woman from discrimination because of her current or a previous pregnancy
maternity (s18); ¾ Protects her from maternity discrimination, which includes treating her unfavourably because she is breast-
feeding, for 26 weeks after giving birth, and provides that pregnancy or maternity discrimination as defined
cannot be treated as sex discrimination
Race (s9); ¾ Includes “colour”, “nationality, “ethnic or national origins” (s9(1)(a)-(b))
*8.2.2
¾ The Explanatory Note gives the following examples:
§ Colour includes being black or white
§ Nationality includes being a British, Australian or Swiss citizen
§ Ethnic or national origins include being from a Roma background or of Chinese heritage
§ A racial group could be ‘black Britons’ which would encompass those people who are both black and
who are British citizens
Religion of belief (s10); ¾ Includes reference to a “lack of belief” (s10(2))
*8.2.3 ¾ Includes “philosophical beliefs” (s10(2)) e.g. belief action is urgently needed to address climate change
(Nicholson v Grainger plc [2010] IRLR 4)
¾ Jews may also constitute a racial group under the definition in s9
¾ The Explanatory Note states that the criteria for determining what constitutes a ‘philosophical belief’ are that it
must:
• Be genuinely held;
• Be a belief and not an opinion or a viewpoint based on the present state of information available;
• Be a belief as to a weighty and substantial aspect of human life and behaviour;
• Attain a certain level of cogency, seriousness, cohesion and importance; and
• Be worthy of respect in a democratic society, compatible with human dignity and not conflict with the
fundamental rights of others
¾ Can include political beliefs (Olivier v DWP (ET/1701407/13))
¾ If an employee genuinely believes their faith requires a particular course of action, that is sufficient to make it part
of their religion (Hussain v Bhullar Bros (ET/1806638/04)
Sex (s11); ¾ A reference to a person who has a particular protected characteristic is a reference to a man or to a woman;
*8.2.1 ¾ A reference to persons who share a protected characteristic is a reference to persons of the same sex
Sexual orientation ¾ The Explanatory Note gives the following examples:
(s12) • A man who experiences sexual attraction towards both men and women is ‘bisexual’ in terms of sexual
*8.2.4 orientation even if he has only had relationships with women
• A man and a women who are both attracted only to people of the opposite sex from them share a sexual
orientation
• A man who is attracted only to other men is a gay man
• A woman who is attracted only to other women is a lesbian.
, STEP 3: HAS THERE BEEN A POTENTIALLY UNLAWFUL ACT
Unlawful discrimination in the employment field against job applicants and employees/workers
is prohibited by s39 and s40 of the Act. These sections make it unlawful for an employer to
either directly or indirectly discriminate against, victimise or harass employees and people
seeking work.
RECRUITMENT
Under section 39(1): applies to applicants
An employer (A) must not discriminate against a person (B)—
(a) in the arrangements A makes for deciding to whom to offer employment;
(b) as to the terms on which A offers B employment;
(c) by not offering B employment.
PROMOTION AND DISMISSAL
Under section 39(2): applies to employees
An employer (A) must not discriminate against an employee of A’s (B)—
(a) as to B’s terms of employment;
(b) 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;
(c) by dismissing B;
(d) by subjecting B to any other detriment
POST EMPLOYMENT DISCRIMINATION
Under section 108:
(1) A person (A) must not discriminate against another (B) if—
(a) the discrimination arises out of and is closely connected to a relationship
which used to exist between them, and
(b) conduct of a description constituting the discrimination would, if it occurred
during the relationship, contravene this Act
(2) A person (A) must not harass another (B) if—
(a) the harassment arises out of and is closely connected to a relationship which
used to exist between them, and
(b) conduct of a description constituting the harassment would, if it occurred
during the relationship, contravene this Act
Although s108(7) of the Act states that post-employment victimisation is not covered,
the Court of Appeal held in Jessemey v Rowstock Ltd and Anor 2014 that this was
a drafting error and that post-employment victimisation is covered
Potentially unlawfully acts will only be unlawful if discriminatory SO look to section
13 test for direct discrimination
, STEP 4: IN COMMITTING THE IDENTIFIED POTENTIALLY UNLAWFUL ACT DID
THE EMPLOYER, BECAUSE OF A PROTECTED CHARACTERISTIC, TREAT
THE CLAIMANT LESS FAVOURABLY THAN THEY WOULD TREAT A
COMPARATOR?(s13 EqA)
v Identify the comparator:
• MUST Identify a comparator – an actual comparator (e.g. an individual in the workplace) or
a hypothetical comparator in order to compare the treatment received.
• It is important that there is no material difference between the circumstances of the
claimant and the comparator. Ideally, find someone who has the same qualifications,
experience, family background apart from the protected characteristic to see whether the
protected characteristic was the reason for the difference in the treatment.
v What is less favourable treatment?
o Broadly defined: covers any “disadvantage” (Jeremiah v Ministry of Defence [1979] IRLR
436)
o All C need show is that he “could reasonably say that he would have preferred not to have
been treated differently in this way”
o s13 appears to suggest that the test is objective: the question is whether the complainant
would have been treated:
• differently; and
• more favourably
Had it not been because of sex, race, religion or belief, sexual orientation, gender
reassignment or marital / civil partnership status
v Because of the Protected Characteristic?
There needs to be a comparator or a hypothetical comparator- a person without that protected
characteristic. How does/would the employer treat a comparator without the protected
characteristic?
o Tribunal must ask what the “conscious or subconscious reason for treating the claimant
less favourably was”.
o The reason need not be the sole or main reason, as long as it had a significant influence
on the outcome (Nagarajan v London Regional Transport [1999] IRLR 57).
o What is important is to discover what caused someone to act as he did, as opposed to a
consideration of that person’s motive, intention etc.
o I.e. consider evidential factors for and against the Claimant:
§ Difference in status and treatment indicates only a possibility of discrimination.
§ Is there a potential explanation for the treatment which is not discriminatory?
§ e.g:
• Experience – both length of and relevance to the job role.
• Qualifications
• Disciplinary records
• Attendance records.
• Particular suitability for the job role e.g. enthusiasm etc.
§ Need to know a sufficient amount about the employee and comparator to assess
this.
§ How does the employer treat people generally with the protected characteristics?
• Historic instances of discrimination?
• How have complaints been handled?
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