Equality at Work (L13)

Question 1

What is the current legislation governing equality in the workplace?

Answer 1

Equality Act 2010.

Introductory text: ‘… to reform and harmonise equality law and restate the greater part of the enactments relating to discrimination and harassment related to certain personal characteristics …’

Part 5: Work.
Part 2: Equality: key concepts.
Part 8: Prohibited conduct: ancillary.
Part 9: Enforcement.
Schedules.

Question 2

Who does the Equality Act 2010 apply to?

Answer 2

Those who are in employment.

‘Employment’ — S83(2)(a).
“Employment” means— Employment under a contract of employment, a contract of apprenticeship or a contract personally to do work.

Special categories: contract workers; police; barristers; advocates; partners; office holders.
Ss41-52.

Question 3

What does Jivraj v Hashwani tell us about who is covered by the Equality Act 2010?

Answer 3

Not everyone under a contract to personally perform work are protected.

Requirement for subordination. Sufficiently subordinate to the other party in the contract.

This means workers are likely covered.
Independent contractors are not necessarily subordinate so many not be covered.

NOTE: some criticism that it restricts the scope?

Question 4

What situations is the EA applicable to?

Answer 4

Discrimination / victimisation of applicant by employer at recruitment (s39).
- Selection; terms.

Discrimination / victimisation by employer of employee during employment (s39).
- Terms; access to promotion, transfer, training; receipt of benefits, facilities, services; dismissal; detriment.

Harassment of applicant or employee by employer (s40).

Discrimination / harassment / victimisation by employer after employment relationship has ended (s108, and Jessemey v Rowstock Ltd).
- E.g. refusal to give a reference because the employee has brought a discrimination complaint.

Question 5

What are the protected characteristics under EA s4?

Answer 5

Age. “Post must be held by someone 40+” or “you must retire at age 65”. These could be unlawful if the employer cannot justify them.

Disability. Includes cancer, Alzheimer’s etc.

Gender reassignment. Can be a proposed assignment.

Marriage and civil partnership.

Pregnancy and maternity.

Race. Defined to include colour, nationality, ethnic background.

Religion or belief. Includes philosophical beliefs or lack of religion.

Sex.

Sexual orientation.

Question 6

What is direct discrimination under EA s13?

Answer 6

A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

Question 7

What does James v Eastleigh Borough Council tell us about the ‘because of a protected characteristic’ requirement under EA s13 for direct discrimination?

Answer 7

Objective test.

61 year old man, complained he had to pay to attend a council swimming pool when his wife did not.
Reason was the policy of the council which allowed free access to pensioners. Women at the time reached ‘pension age’ earlier.
Any motive of the council was considered to be irrelevant.
Approach from an objective standpoint.

Would he have been treated less favourably if not for his sex? No.

Question 8

What does European Roma Rights Centre and others v Immigration Officer tell us about the ‘because of a protected characteristic’ requirement under EA s13 for direct discrimination?

Answer 8

Motive is irrelevant.

Question 9

What does EBR Attridge Law LLP v Coleman tell us about the ‘because of a protected characteristic’ requirement under EA s13 for direct discrimination?

Answer 9

Discrimination can happen by association to someone who has that protected trait.

Woman cared for her son with a disability.
Claimed her employer harassed her because of her association with him.

Question 10

What does Birmingham City Council v Equal Opportunities Commission tell us about the ‘less favourably’ requirement under EA s13 for direct discrimination?

Answer 10

It is interpreted widely.

Denied a choice that they valued.
This was enough to constitute less favourable treatment.

Question 11

What is the requirement under s13 for direct discrimination that the behaviour must be compared to how they ‘treat or would treat others’?

Answer 11

Real or hypothetical comparator.
How would they treat someone else with the same material characteristics but for the one trait?
Note: no suitable comparator for a pregnant woman.

Question 12

When is justification available for direct discrimination?

Answer 12

No justification.

Except for age, provided the employer can show that discrimination was a proportionate means of achieving a legitimate aim.

Question 13

What is indirect discrimination under s19 EA?

Answer 13

Application of a provision, criterion or practice (‘PCP’) which applies or would apply to persons who do not share the claimant’s protected characteristic.

Puts or would put people with the same protected characteristic as the claimant at a particular disadvantage when compared to those who do not have the protected characteristic.

Puts or would put the claimant at that particular disadvantage.

Not a proportionate means of achieving a legitimate aim.

Question 14

What is a provision, criterion or practice (PCP) for the purposes of indirect discrimination under EA s19?

Answer 14

Interpreted widely.

For example, a uniform policy prohibiting head coverings.

London Underground case.

Question 15

Which case demonstrates the comparison between persons with and without the protected characteristic for indirect discrimination under EA s19?

Answer 15

Naeem v Secretary of State for Justice.

Question 16

How does Homer v Chief Constable of Yorkshire Police show a justification for indirect discrimination under EA s19?

Answer 16

Supreme Court affirmed that the employer needs to be able to show that there was a real need for the PCP.
Also, the employer’s actions were reasonable / proportionate. Balance the adverse effect and the requirement.

Question 17

What is harassment under EA s26?

Answer 17

‘Engages in unwanted conduct related to a protected characteristic that has the purpose or effect of violating a worker’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the worker’.

Question 18

How does English v Thomas Sanderson Blinds show that harassment must be RELATED to a protected characteristic?

Answer 18

Employee subject to homophobic abuse my coworkers.

He was not homosexual, but the conduct was related to sexual orientation.

Question 19

What does S26(4) tell us about how the conduct in indirect discrimination needs to have the PURPOSE or EFFECT of violating the worker’s dignity?

Answer 19

Subjective and objective test to determine ‘effect’.
Necessary to have regard to the other circumstances of the case.
Was it reasonable for the conduct to have the effect on the individual that it had?

Question 20

Which case shows that an employer can be liable for harassment by its employees?

Answer 20

Reed and Bull Information Systems v Stedman.

Employer liable for sexual harassment by its marketing manager because it had failed to investigate the secretary’s claims.

Question 21

What is victimisation under EA s27?

Answer 21

Detriment because of a protected act?

Question 22

What is a ‘protected act’ under EA s27(2) for victimisation?

Answer 22

Brought proceedings under EA.
Information / evidence in connection with proceedings under EA.
Any other thing for purpose of / in connection with EA.
Allegation of contravention of EA.

Question 23

Which case shows that there must be a causal link between the protected act and the detriment for a claim of victimisation?

Answer 23

Chief Constable of West Yorkshire Police v Khan.

Link was absent in this case.

Question 24

What are the exceptions to equality claims?

Answer 24

Occupational requirements (schedule 9, para 1).
E.g. requiring an actor be a particular sex.
Requirement need to be proportionate. Least discriminatory option.

Other exceptions include:
Organised religion (schedule 9, para 2).
Religious ethos employers (schedule 9, para 3).
Armed forces (schedule 9, para 4).

Question 25

What is positive action under EA s158?

Answer 25

If employer has reasonable belief that:
A particular group is experiencing disadvantage in the labour market.
Persons who share a protected characteristic have particular needs.
Participation in an activity by persons who share a protected characteristic is disproportionately low.

THEN employer can take proportionate action to alleviate disadvantage/meet needs/increase participation.

Question 26

What does EA s159 say about positive action in recruitment and promotion decisions?

Answer 26

Positive action in recruitment and promotion decisions.
Employer may take a protected characteristic into consideration if reasonable belief people having the protected characteristic are at a disadvantage or under- represented.

BUT only
In a tie break situation (evenly balanced candidates); and
Proportionate means of overcoming/minimising disadvantage or increasing participation.

Question 27

What is the time limit on equality complaints?

Answer 27

S123 — 3 months.
Extended if just and equitable.

Question 28

What is the burden of proof in equality complaints?

Answer 28

S136 — Reverse burden of proof.
Claimant proves prima facie case of discrimination on balance of probabilities.
Respondent proves no discrimination.

Igen v Wong.
Two-stage approach.

Question 29

What are the rules for vicarious liability in equality complaints?

Answer 29

S109 — ‘Course of employment’.

Jones v Tower Boot.
Chief Constable of Lincolnshire Police v Stubbs.
Waters v Metropolitan Police.

Defence if took reasonable steps (s109(4)).

Question 30

What remedies are available for equality complaints?

Answer 30

Remedies (s124).

Compensation.
Includes injury to feels (s119(4)).
- Vento v Chief Constable of Yorkshire Police and subsequent guidance by the ET Presidents in England and Wales and Scotland.

Declaration.
Recommendation.