LPC Notes - Direct Discrimination
Distinction level notes for Employment Law & Practice - WS5 Direct Discrimination
The University of Law specific (2022)
Outcomes
By the end of this unit, you should be able to:
✓ Explain to a client the law and procedure relating to direct discrimination.
✓ Take and analyse a client’s instructions to give initial advice regarding whether they have a
potential claim of direct discrimination and the options available to the client.
✓ Analyse the prospects of a claim succeeding to determine if the claim should be taken on a
no-win no-fee basis.
Unit Workshop Tasks
In this unit workshop you will:
✓ Prepare for and conduct an interview with a new client who has failed to secure promotion.
✓ Analyse the client’s case to decide if your firm will take the case on a no-win no-fee basis.
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, EMPLOYMENT LAW & PRACTICE
Direct Discrimination
Ch 8, p361
Key Terms
Always mention in full, and then abbreviate
Equality Act 2010 EqA10
Provision, Criterion or Practice PCP
Employment Tribunal EAT
Employment Rights Act 1996 ERA96
The general common law rule is that an employer is free to offer employment to whomever he
chooses (Allen v Flood and Taylor [1898] AC 1). However, this common law freedom has been
restricted by statute.
Is the ❖ The Act protects both “workers” and “employees”:
Claimant o Employees (s39 EA)
Eligible to ▪ s83(2) EA: defines ‘Employment’ as “employment under a contract
bring a Claim? of employment, a contract of apprenticeship or a contract
personally to do work”. NB:// this definition is wider than the
8.1.2, p363 definition of ‘employee in s230(1) ERA
(Who is o Job applicants (s39 EA).
Protected) o Contract workers (s41 EA)
o Office holders (s50 EA)
o Trade union members (s57 EA)
o Employees whose employment has ended (s108 EA).
❖ No length of service requirement.
❖ Territory/Jurisdiction 8.1.3: EA 2010 does not deal with territorial scope
(unlike the old legislation that made it clear it applied to Great Britain).
o The EHRC Code state that discrimination protection is required where
there is a sufficiently close link between the employment relationship
and Great Britain.
o Clyde & Co LLP and Another v Bates van Winkelhof [2012] EWCA Civ
1207.
▪ Bates spent most of her time working abroad. Court of Appeal:
The test to apply is whether an individual has a sufficiently strong
connection with Great Britain.
❖ NB:// EHRC may bring a claim or assist an individual in relation to any
breach and bringing a claim. EHRC have the power to investigate
discriminatory practices and may a serve a non-discrimination notice.
Time Limit ❖ 3 months (LESS A DAY) from the date of the act complained of or such
8.8.1.1 (p387) other period as the tribunal thinks just and equitable (s123(1)).
o Prior to issuing the claim, the Claimant will need to refer the matter to
ACAS under the Early Conciliation scheme.
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, EMPLOYMENT LAW & PRACTICE
o The conciliation period will "stop the clock" in relation to the time limit
for issuing the claim in the Tribunal.
❖ The Tribunal has discretion to extend the time period if it thinks it “just and
equitable” s123(1)(b)
❖ Where there is a continuing act of discrimination the 3 months don’t start until
the discrimination ceases, s123(3)
o Where there is a failure to do something; time limit starts from when
the person decides not to do the thing
▪ e.g., employer refuses to make reasonable adjustment for
disabled person. The date runs from the day the employer would
have reasonably been expected to make the adjustment.
What is the s4 Equality Act 2010
relevant ✓ Sets out certain protected characteristics.
Protected ✓ These are grounds upon which discrimination is deemed unlawful.
Characteristic?
Age s5
(8.2, p315) Disability s6 and
Sch1
Gender reassignment s7
Marriage & civil partnership s8
Race s9
Religion or belief s10
Sex s11
Sexual orientation s12
Pregnancy and maternity s18
The EHRC Code of Practice on Employment contains a wealth of
information, and tribunals are obliged to consider when it appears relevant.
❖ Age (s5)
❖ Gender reassignment (s7) 8.2.5
o I.e., ‘someone who is proposing to undergo, has undergone, or is
undergoing gender reassignment’.
o Includes transsexuals (s7(2)) [someone who identifies as belonging to
the opposite sex] “a reference to a transsexual person is a reference to a
person who has the protected characteristic of gender reassignment”.
❖ Marriage and civil partnership (s8) 8.2.6
o A person engaged to be married is not married and therefore does not
have this protected characteristic.
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