Employment Law 6 - Lecture 6: Discrimination Law: Remedies and Prohibited Conduct: Harassment, Victimisation Flashcards

Question

what abiut the cap?

Answer 1

Theres NO OVERRAL CAP- so in all other claim tp1 = cap wd cap was amount c would have received if prop performed But for a discrim claim, there is no ceiling So that’s something to note

Answer 2

However, guidelines have been developed through case law, such as Vento 2003 and Da’Bell 2010, to set a cap in respect of the injury to feelings element of an overall discrimination award

Answer 3

The current Da’ Bell 2010 guidelines are: one off incident = £500 - £6,000; several incidents = £6,000 - £18,000; and relentless campaign = £18,000 - £30,000

Answer 4

Hw in injury to feeling el- there is effectively a cap cos what cts done , first cas vento, most recient guifliens = da bell In essence have cap

Answer 5

So for injury feelings/ ask was harassed only once, if several times or was it just relentless. But say again its import to apprec that 30,000 cap applies to injury to feelings alone. And injury to feelings is just 1 el of overall award, so is no cap for overall award.- and wherever the tribunal is the veue for deicng a cas,e they always have that option, same option with

Answer 6

As we saw with UD in Employment 1, if an ET feels that a defendant has not followed the ACAS code of behaviour, it can order that the employer pays the successful claimant an additional 25% on top of the original figure the ET decides it should pay, and vice versa if it feels the claimant has not followed the ACAS code of behaviour

Answer 7

Same option with ud and rp claims, if the d employer or c was partic bad behaviour then tribunal either increase or decrease dependant on part anything bte 1% to 25%

Answer 8

(iii) S 124(2)(c): A recommendation:

Answer 9

A recommendation (eg that the defendant employer takes a specified step within a specified period, such as apologise to the claimant or offer the claimant the next available promotion) tends only to be relevant when a successful claimant intends, as is common with discrimination law, to continue to work for the defendant employer against whom they bring their claim

Answer 10

3rd type of rem= recommediation = aapology or maybe poffer training in certain are

Answer 11

And it tends to be more often tha not a remedy awarded where the working chooses to carry on working with the d employer.

Answer 12

Were used by now, that fact that further req we got used to for ud for wd for re needs to be dismissal does not apply to discrim

Answer 13

. U don’t need to have been dismissed. You can stay working for your employer and still bring a discrim claim from within. So that’s remedies

Answer 14

S 26: Harassment: Having considered remedies, let’s now turn our attention back to the remaining 2 of the 6 types of PCo The 3rd of the 4 main types of prohibited conduct is: S 26: Harassment As always, let’s start by going straight to the primary source, namely the relevant statute, which is s 26 of the EA 2010

Answer 15

Now look at last 2 type of prohib con and 1st = harass So some text books saying 4 main 1’s if so this is 3rd of4 mai ones Always start at primary source = act

Answer 16

S 26: Harassment: (1) A person (A) harasses another (B) if – (a) A engages in unwanted conduct re a relevant protected characteristic (RPCh) (b) the conduct has the purpose or effect of (i) violating B’s dignity or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B

Answer 17

r.a.w – bit underline wont find in statute –

Answer 18

1 a - unwanted conduct 1 b - purpose or effect 1 b i - (i) dignity or 1 b (ii)- humiliating

Answer 19

A UWANTED CINDUCT UNWANTED BY THE C – now were used to undetsnading that if word rel appears it means the partic prohib e.g harras is not avail for all 9 but only avail for 7

Answer 20

B- r.a. NOW as we will revist that word effect has massive impaxt. Bc prevents d from saying ,that wasn’t the purpose/aim. The way that the c was wounded by comment was unintentional. By including word or effect it makes it not subjective but objective test. Bc tribunal can turn around and say well, even if didn’t intend it this has veen the effect. So that word effect is the word that make it an objective test rather than subjective test. Violating bs dig or creating intim … could underlined all of them but word tribunal use mostly is humiliating. So its got to be

Answer 21

UNWANTED AND HVE PURPOSE OR EFFECT FIG OR HUMIL

Answer 22

(2) A also harasses B if – (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b)

Answer 23

Sub sec 2- r.a.w 2 a and again has word purpose or effct

Answer 24

(3) A also harasses B if – (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct

Answer 25

(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account: (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect

Answer 26

Sub sec 4 is importnant PERCPETION SHOUKD UNDERLINE- WHY COS IF CAST MIND BACK TO ELC 1 – we agreed that 1 of the many reasons offered by employers for believein that ea and discirm law marks point where pendulum swung to far in favour fo worke,r was that disxrim claims focus on how the c felt, not how anyone else felt they should ahev felt. So tis the eprcp of c that matters. e.G the banter thing and then 1 thing and u start crying etc. migt ll think that but if go to tribunal saud that 1 thing said belowe th blet and so ribunal all of u could turn up tot ribunl sense of humour failure , bizaree reaction they wouldn t care. PERCPETION S,26 4A all tribunal listen to is how it actually made me feel.

Answer 27

(5) The RPChs are - only 7 of the 9 PChs listed at s 4, with (i) marriage & civil partnership and (ii) pregnancy & maternity both excluded

Answer 28

Sub sec 5 that lifts 7 of 9 protech ch avail to harras claim. 2 aremt In the list is MARRIAGE AND CIVIL AND PREGAN C AND MAT So that slaw that s always our starting point is that primary source.! All about the law

Answer 29

Comparator We agreed in lecture 3 that, whilst the PCos at sections 15 and 20 EA require no comparator, those at sections 13 and 19 EA do require a comparator What, therefore, is the situation re s 26 and s 27 EA? Like the PCos at sections 15 and 20 EA , but unlike those at sections 13 and 19 EA, those at s 26 and s 27 require no comparator

Answer 30

C we agreed some type of prohib c rwuire c . So 2 type relates disab = s.15 and 20 no c , s.13 most requires C s.19 also require c but that pool of comp, whereas s.26 and s27 they don’t require c

Answer 31

Is there any defence to s 26? We saw in lecture 3 that a defendant employer has 2 potential defences to a s 15 claim, at s 15(1)(b) and s15(2), but no ‘official’ defence (only 2 counter-arguments) to a s 21 claim re s 20

Answer 32

We then saw in lecture 4 that the answer to the question of whether a defendant employer has a defence to a s 13 claim depends on the PCh in question (eg proportionality can be a defence re the PCh of age) but, as a general rule, the only defence an employer defendant can argue is a genuine occupational requirement (GOR)

Answer 33

Always use this as opp to revise which prohib co hav defence and which don’t. rmeebr we agreed s.15 discrim arising form disab has 2 defence prop defence and defenc eof not having known e.g woul need to relate emntal than physical. And thrn with s.20 theres no official dfence but is counter arg. Then we say in next lec Thatfor dd – cerain specif cha have a ind of defendece so age r.aw above - Cases to see how rleutant tribunal is to conciede that it was a genuine occ uaptional req e.g role of batman or eneding someone speci gender e.g srwshcing people.

Answer 34

We then saw in lecture 5 that a defendant employer has 1 potential defence to a s 19 claim, at s 19(2)(d) In today’s lecture, we need to decide whether there is any defence to s 26

Answer 35

We saw that s.19 indirect dscirm has one potential defence= prop – said sev times now any uk stats passed since 200 has ref to properitonality- strasborg- 4 scenarios we leaent how to apply that defence, and seen how UNFAIR IT CAN BE IF STATS NOT ON UR SIDE, so brings us to s.26 and to ask ourselves, Dio we think.. Lec 6 contains defence no fewer 3 sec or sub sec olf s26 theres this repat PURPOSE AND EFFECT, so weve already agreed that’s its not a subjective test. So given that we know that d employer is deprived ofd enfncce honestly not what I intended. Didn’t mean to hurtht agt person = irrle. If it had effect of hurting or humiliating them then that’s enough

Answer 36

Lecture 6 Activity 1: Maybe we know but, if we had to guess, do we think there is any defence to s 26? It might help us to note that s 26(1)(b), s 26(2)(b) and s 26 (3)(b) all contain the words ‘purpose or effect’

Answer 37

Answer: The answer is that there is no defence to a s 26 claim A clue that this might be the case was the fact that s 26(1)(b), s 26(2)(b) and s 26 (3)(b) all contain the words ‘purpose or effect’ The inclusion of the word ‘effect’ renders the test an ET should apply objective rather than subjective, which, in turn, means that lack of intention is no justification for having made the claimant feel humiliated We saw in lecture 1 that a general principle of discrimination law is that motive, or, more specifically, the reasons behind alleged discrimination, tends to be irrelevant in an ET’s eyes and, instead, what matters is whether the discrimination occurred

Answer 38

Not huge surpise no defence to s.26 itself Few sdes time is defence to s.109 vic liability but s.26 self = no and those words PURPOSR AND ISNG LE WORD EFFECT is big reason why there is no defence. Makes it a objective test.

Answer 39

We agreed that the emphasis is on how the victim actually felt rather than how 3rd parties who were present might have expected the victim to feel An ET will assess a s 26 claim through the victim’s eyes

Answer 40

So its all abpit with harrassmen tin particular that it is all about with harra how v feels. Bc of wording of s.26 (4)

Answer 41

Vicarious liability In lecture 1 we mentioned its embracement of the concept of VL as 1 of the reasons why employers feel the EA 2010 is overly favourable towards workers

Answer 42

VL, as contained in s 109 EA, applies more commonly to s 26 than to any of the other 5 types of PCo

Answer 43

So now seems a good time to remind ourselves of the s 109 wording

Answer 44

VL and somerhing we mentioned back in lec 1 – discri law weghed worker and against employer . 1 paritcal unfair VL APPLIES BY FAR MOST COMM TO HARRASSME

Answer 45

S109: Liability of employers and principals: (1) Anything done by a person (A) in the course of A’s employment must be treated as also done by the employer (3) It does not matter whether that thing is done with the employer’s knowledge or approval

Answer 46

VL R.A.W e.E ur all colle and work for me, and of u says a terrible thing , shocking e.g of sexual harras – pro bunfir if I ur employer blamed for that an yets.109 makes me liable. Seems unfair! – that’s why emplpyer thing discrim against them .f airoung person who said it should be in trouble but y should emplpyer when didn’t kno. Yet that’s what s.109 does. It maes employer VL.

Answer 47

(4) In proceedings against A’s employer (B) in respect of anything alleged to have been done by A in the course of A’s employment it is a defence for B to show that B took all reasonable steps to prevent A –

Answer 48

(a) from doing that thing, or

Answer 49

(b) from doing anything of that description

Answer 50

Only defence have is contain sujb sedc 4 109- tjat I didn’t just take some steps or most steps , but ALL REASONABLE STEPS to prevent it happening. So remebr said n o defence or justifaicaiton for ahrrasing some 1. so 1 did harassing not not avial to you. Only avial to me bc im vl for what ahppend. So I the employer have chance of defending mysel. By saying I shouldn’t be made vl. Cos ive takn all reasonable seps to make sure no harras or prejudice in work place.

Answer 51

‘in the course of A’s employment’ The EAT confirmed in the case of Jones v Tower Boot Co. Ltd 1996 that the phrase ‘in the course of A’s employment’ in s 109(1) can extend even to evening work parties away from the employment premises

Answer 52

In course of a’s emloymenr Jones Christmas part outside office hrs plce at hotel and sexual harr happened was taken mby emlyoement tribunal but still demmed in COURT OF EMPLOYMENT- discrim and harras just not fair . Theyre weight to heavily against us.

Answer 53

S 109 permits a s 26 harassment claimant to bring simultaneous harassment claims against both:

Answer 54

(i) the work colleague(s) who allegedly did the harassing and

Answer 55

(ii) their employer

Answer 56

Perhaps unfairly, a claimant would be better advised to bring their claim against their employer rather than their colleague who harassed them because the company is more likely than a work colleague to have the resources to pay if the claimant wins

Answer 57

So imagine ur recipenet of this humiliating degrading harasmene.t bc of s.109 u can brign claim against actual indiv who harassed but also AGAINST EMPLOYER , EVEN IF HAD NOTHING TO FO – 2 PEOPLE. Mor likely to brign against employer bc if im rich enough to have own comp im almost cert gonnabe able to payout. Whereas colleg may nto be able to. So u can see unfairness of it all in tems of impact on employer. If youre

Answer 58

However, a s 26 harassment claimant should nevertheless bring their claim against all parties in case:

Answer 59

(i) the employer persuades the ET it is not vicariously liable under s109, and / or

Answer 60

(ii) the work colleague(s) lack the resources to pay

Answer 61

If youre acting for the perso whos been harassed. You tell them to b ring claim against both. But more likely success is claim against employer even tho did nothing wrong.

Answer 62

Lecture 6 Activity 2: We agreed there is no defence to a s 26 claim How, therefore, do we think an employer might successfully persuade an ET that it is not vicariously liable under s 109?

Answer 63

So w r.a.w Answer: 109 (4) – but that requires that th e employer took ALL reasonable steps. That word ALL hell of abr to reach. Hard tol satisfy.

Answer 64

Answer: Since there is no defence to a s 26 claim, an individual work colleague who is accused of having carried out harassment is not able to justify their actions

Answer 65

However, there is a defence to s 109

Answer 66

S 109(4) EA provides a defendant employer with the potential defence to s 109 VL that it took all reasonable steps to prevent the worker from carrying out the s 26 unwanted conduct

Answer 67

Cosndier ac lec 1 where aksed ofr e.g of steps employer might take to try prevent harras prejudice Tribunal may look to see?- TRAINING most impo – of 3- 3 e.g look at was havig policy toube with polocu but look 50 yrs time .but rel freq gtraining. 3rd thing mentioned is to take evry case seriously. And this applies partic to male workers. Female more likely to take sexual harr seriously. Almost form male well ur loucky etc and not therefoe taken seriously. So evry single complaint shouldbe taken more seriously. So even then

Answer 68

A defendant employer can, therefore, escape liability re a s 26 harassment claim, but only to the extent that it may be able to satisfy an ET that is not in fact vicariously liable

Answer 69

However, it’s important to appreciate the defence is to s 109 VL and not to the alleged s 26 harassment

Answer 70

We agreed, in lecture 1, that an employer should take pre-emptive action against a potential discrimination claim by being seen to have taken all (not even most) reasonable steps to prevent it

Answer 71

We considered an activity on what steps we might advise employers to take to satisfy the s 109(4) defence

Answer 72

No guarantee that employer would succed with s.109 4 defence but as bare min employer should go for those 3

Answer 73

We agreed that, at the very least, an employer might:

Answer 74

draw up and make available to all employees various policies (eg anti-bullying, anti-harassment, equality);

Answer 75

provide all employees with relatively regular training on these policies; and

Answer 76

take every harassment / bullying claim (including any from males) extremely seriously, and investigate it thoroughly

Answer 77

It is rare for an employer to manage to satisfy an ET that it has relied successfully on the s 109(4) defence by taking all reasonable pre-emptive steps to protect its workers against harassment

Answer 78

This challenge for a defendant employer is rendered all the more difficulty by the high evidential bar imposed on a defendant to a discrimination claim by the EAT in Barton 2003

Answer 79

r.a.w | Especilaly barton case- not balanced set of proof. What worker has to prove possible whreas employer NO WHATSOVER.

Answer 80

Burden of proof We’re hopefully bored by now of agreeing that s 136(2) states that the court must hold that discrimination occurred if there are facts from which it could decide that it occurred, so that all a claimant needs to establish is a prima facie case that it’s possible they’ve been discriminated against (but it can be very difficult for claimants to provide evidence)

Answer 81

We’re hopefully similarly bored by now of agreeing that, by contrast, the defendant must provide an adequate explanation in the form of a denial or a justification which leaves the ET in no doubt that ‘in no sense whatsoever’ (Barton 2003) did discrimination occur

Answer 82

WE KNOW worker just need to estab poss discirm but emplpyer non sense whastover

Answer 83

ACAS’ non-statutory guidance replacing s 138 questionnaire procedure

Answer 84

We agreed in lecture 4 that, on 6 April 2014, David Cameron’s Conservative Government repealed s 138 EA, the old statutory questionnaire procedure for a worker to gather evidence to prove, 1st, a prima facie case that they could have been discriminated against and then, 2nd, at the hearing, that they actually were discriminated against

Answer 85

In essence, s 138 used to provide a structure, with time limits to reply and a penalty for non-compliance imposed on an employer, for a claimant to ask their employer questions on a prescribed form to try to establish discrimination

Answer 86

Another thing agred. Amybe imabalance is compensation for fact so very difficul to prove spoken discrim. If you receive discrim email easy but if spoken it can be diff to prove. So we have agreed that with d claim. 1 way ij which c can try to estab should succed. Is what used to be down on q procedure. But daid cam repealed that but in its place has come acas guidleins obvs not sta.

Answer 87

Always thinka cas should be cos et follows but ahsnt come form palr. Importnlty for c good news is although structures gone and emplpyer doesn’t have to reply same time fram.e crucially what has remained is that tribunal can continue to use jargon draw an ‘adverse ifnference’

Answer 88

However, although a discrimination claimant has now lost the benefits of the old questionnaire procedure, it has now been replaced with ACAS’ non-statutory guidance on how a worker might obtain evidence

Answer 89

Under this guidance, a claimant is still able to ask questions of his employer, in any format at any time, and, crucially, an ET is still entitled to draw an adverse inference from an employer’s failure to respond to any of the questions, or from an evasive or equivocal answer

Answer 90

Advers einfenrnce from eplpoyer not answeir or vague = adverse inference-e can be suspicious or presume guilt. Bc of .

Answer 91

Lecture 6 Activity 3: Let’s, as we always do, reinforce our understanding of the law we’ve learned in this lecture about s 26 by applying it to a typical problem-style question of the kind we might encounter in our exam: Hera works in a warehouse for Fox Ltd. Last week, Hera noticed that a group of 5 of her male colleagues were looking at pictures of women’s breasts on 1 of the computers. This made Hera feel uncomfortable, but she didn’t say anything, as she didn’t want to seem like a killjoy.

Answer 92

Lec 6 – as always . Ever learning anything best way to know is explain it to someone else. So in sense applying what learnt is equiv- reason keep doing helps undertsnad and can paply what we have agreed.

Answer 93

Later on, on the same day, Hera was in the warehouse, when she overheard 1 of the same group of 5 men, called Jay, making comments about the size of her breasts to the other 4 men. Hera heard Jay say ‘I’d score Hera as a 9 out of 10’. Jay then came over to Hera and pinched her bottom, making the whole group laugh. This made Hera feel humiliated and depressed, and reluctant to return to work.

Answer 94

3 bd potential Looking womans breasy Comment of breasts Pinchin bottom

Answer 95

Please advise Hera as to: (a) whether she might be able to bring a harassment claim against Fox Limited and / or Jay; (b) if so, her prospects of success, including an assessment of whether Fox Limited and / or Jay might be able to defend her claim; and (c) providing figures where possible, the various elements of any remedies an employment tribunal is likely to award to Hera should her claim be successful.

Answer 96

Unfrotuantley non 3 in wording So bnefore start thinking. Know saying but Problem style q – GO TO PROBLEM STYLE. 50 % REL LAW 50% APPLYING LAW BRILLAINYL EXPLAINED YO FACTS, odnt say clearly its case need to spell it out Exploded got not where to live = no marks if don’t say

Answer 97

Suggested answer: Let’s remind ourselves that, to achieve a high mark in a problem-style question, we must: (i) identify and briefly explain any relevant law; and then (ii) apply that law, accurately and in detail, to the facts we are given in the question, spelling out the obvious Let’s also remind ourselves that, to achieve a 1st, we should strive to demonstrate evidence of wider reading

Answer 98

Nex thing diff to stand out from crowd- whow do we stand out- 1st in ass critera most comm applied- has student shown evidence of wider reading e.g text books, major case current affairs, journals, additional past slides

Answer 99

Finally, let’s also remind ourselves of our recommended answer structure for each potentially relevant claim in a problem-style question: Background / definition / legal position /options: Law: background & definition, Application: legal position & options Venue: Law: Application: Claim form and time limit : Law: Application: Eligibility requirements: Law: Application: Further requirements: Law: Application: Burden of proof: Law: Application: Likely awards if success possible: Law: Application: Claimant’s prospect of success: Law: Application:

Answer 100

Other thing is default answer structure but its there for reassurnac,e mege this answer struct with q’s in exam. Think if look at those q’s then part a – background etc all part a – mention in relation n part a Success b prospects = b.op and claimants and the providing figures liely award and c so sitkcing to anser and structure Way we answer each legal point we remember right this wat law says and other half is applying it.

Answer 101

Back groun def= legal ppitn ands the legal pos optins= applicton part so

Answer 102

How much detail bc background part probs least improtna tif not make vagueref to background. So as run through this. So each section

Answer 103

So back to dsicrim depends how fast we write Discirm law = things coul say satt claim not common law 2nd stat claim passed by parl –(lec 1 ) … very first act of aprl involving discirm = equal pay act 1970 then other stat – diff stat for each 9 protect charact give e.g sex dicim 1975 then know all brough togeth undr 1 umbrella called consoldiateng stat. – write against clock. If des for time, wouldn’t bother too much about background at all. Move on to def: know about harass – key wolrds summa- summar conduct unwanted ‘ purpose or effect has t g o kin there and either dignity and humiliating, cant write out whole thing In stat book also s.26 4 part about eprcption of c.

Answer 104

So that’s law part. Then turning to applciaiton- c ‘s legal pos or optionms- so ned to look face value is there a claim?. So we just apply law to fact. Is it unwanted. Yes cos told it made her dpressed etc, we know it sunwanted. Purpose or effect even if fooling around , irrfel bc 2 reason 1 is word effect and toher word perpciton in sub sec 4. and even says she flet nhum so yes can say yes. She is in poss legally woul appear to brggin s.26 harra claim.

Answer 105

Options= discrim law = 3. we know 1 off them is osrich burying head ins and. Have to give c as option. Might think theyre silly doing nothing is option. Other 2 is obvs bringing claim. BUT bringing claim continue stay working and bring claim hope las grow up or she could elave fox and bring claim froma fie.r unlinke ud and reducnay payment- u don’t ened to een dismmsied to bring discim claim.

Answer 106

Venue: s.120 sub sec 1 confirms venu has to be Et. THEREDOFR EIN terms appl here must bring claim here. No ridnayr court option.

Answer 107

Claim form. Law says must use et1 form. Stats s.3 employtment tribunals act(whehthe ru have tiem only u can find out) will u have time say s.

Answer 108

8 only know if have time by having ago time by clock. | So all that is alw – and agin ckaim form served not only on emplpye but tribual.

Answer 109

Application make sure that client knows that s.8 and 9 improtnat parts and then time lim(lec 1) easies sec to rmeber s.123. s.123 ordinarily c have 3 months to bring claim from last discrim act. Harrass more than 1 episode and very time lads harras 3 months runs again. Again dpend how quickly we write, we could add tribunal famously discirm claims more willingly to grant time extensions. But so s.123 tribunal appreciate ethat discirm and hararsmment can be deeply upsetting hum exprirnce could take more to bring claim so more lenient granting time extensions.

Answer 110

Application of time limit IS THERE ANYTHING IN THIS SCENARIO TO TALK ABOUT TIME E.G LAST WEEK. So suggest still got 2 months and weeks to go. So onfacts clearly within time limit but wed advise her to bring claim sooner than later.

Answer 111

Eligibiltiy req. we agreed previously that there ar eno contiously employment req don’t need to be employee, can br worker. So aren’t really any stricgtly officla elig req. but also agreed given that u cant bring discir genuinally culd sayarguably2 elig 1. 1of 9 s.4 applies and 1 of 6 prohib con apply. Always deal with protect ch first. Lae syas. In terms of application its sex here.

Answer 112

Sex in list at s.4 and more improtnaly not excluded by s.26 sub sec 5. its in 1 of 7. of 9 protec cha permitted uder law of s.26 and u could say that further guidance to specif protech cha sex is to be found at s.11. and prohib conduct we know s.26 harras. Further req not any only time further req is when c need. And we =e agreed although nec s.13 but not necc for s.26 harassment. So back to q weved now fulfilled part A.

Answer 113

NOW onto part b- the porspects of succ whether d can defend claim.

Answer 114

1st thing say is Ppint out b.op stacked heavily on here is favour. Bc s.136 2 says all hera nees to do is satisfy tribunal that its poss discrim against. L she has to prove whereas employement barton contrast fox lim – no snese whatsoever. So that is in heras favour. Whats not is reason that bop is so imabalcne. Its bc when episode of discirm not wirten don it can be diff to prove. And here all 3 episods are not in writing. So fact 5 lads looking at breats on computers hwpo do u prov.e whats more diff is proving that they then spoke about ehra own breasts. Last part lads pinched their bottom. Of 3 why think 1st easisest to prove.

Answer 115

B it people look at comp and look at time doingit – thjink about what they could do. So of 3 that’s her greatest chance. What do we agrfee.- unique to discrim claims no avil for ud and other claim. What did we agree that a claimant can do to try to estab roof. Or set of fatcs. Used to be governed s.138 of ea but david cam repeal on 6th april 2014.

Answer 116

use d be questionnaire preocudure so it loosk distarous for c as no logner able to ask q for evidenc.e howver acas srepped in ok stats not there but our advice is that although the sturtcure gone form old sgtat rpcoedur. That u stilla ccept answers to questions form the employer that wil put to them as evidence so crucially for c’s acas have sid that tribunals should be able to draw adverse inference froma filure on part of a emplpye of a d . Answer q at all or answer it properly. And at this point e will switch to application. And might actualy suggest some q’s that her ei might ask.

Answer 117

So what q’s might hera aske. E.g what question ask she might ask, have their ever been sexual ahrras q’ what was outcome sexu h lciams? What perc of staff male. So qs that she can ask. But awa fromq proecudre b est hop that time she pitned out guys ahd been lookigna t breats. Guys could say not them = problem so back to 2 hopes.

Answer 118

Hope maybe cctv or hope that college there who might admit or , ring leader etc she might eb able to pursade 1 oher 4 decebt oeson ca u please admit. That person may think fi admit keep job. But its is extremely diff to prove. Is there a defence need to look at sdell. Bc lets not forget that hera very unfairly is not only able to bring claim against j and other 4 lads. Shes able to also brign against fox limited

Answer 119

. Law takes view any decent employer woulda trained staff and no not to do that, talk abot here no defence s.26 but is defence vl. But that would onvice fox limited to convince tribyunal that not only take some or indeed most steps to prevent sexual harr. But that they had taken all reasonable steps. That there staff including 5 lads had include reg training, on harass , that clear policy in pale and anytime any1 complained about ahrras- tkane very seriously. So that’s B AND THEN C NOW DEAL WITH 1ST TIME= REMEDIES

Answer 120

So what hera most interested in= financial compo If she were to get then wed say hat law says usually no upper limit, but she had no loss of earnings so almost all financial claim on grounds of injur 2 feligns. So then mention deball guildeslines e.g 1 off and money .

Answer 121

Other 2 options are declaration that she was subj to harasmen tin workplace and that’s one where fox most concerned in case local press hold of it and last 1 recmonndato e.g men apol and then all fox lim staff recueve traingin in fute. So application what she would get = 3 episode so likely beteen 6 18000 maybe like 10, 12,00 think u an bring calc but don’t think need one. Declaration could be has been harras and also said what recommedaitons likely

Answer 122

Conclusion in prob not as important as in essay but sitllge t last few amrks and just reitatre thinks eh can bring claim. As for prospets of succ need moee info , better if cctv or 3rd paryy willing to abc up. If not breast son comp ict can confirm whreas more diff pincha nd own breast comment and also shed be able to use acas to ask q’s firm bad history of sexu harr which would heap nd indeed whether fox had defence would depdn whether had trains staff and tkane seriously. We nee infor but loks she has prospects of succ eveb tho need moreinfo , rpving it being diff and if did succeed, likely to get up 2 around 12,000 together with decl and erecommedaiton.- so nee to apply commen sens in q for what u may need.

Answer 123

S27: Victimisation: Having considered s 26 harassment, let’s now turn our attention the last of the 4 main types of prohibited conduct, namely: S 27 victimisation, which, in essence, is where an employer seeks revenge against a worker who has complained about the employer’s conduct

Answer 124

S 27: Victimisation: (1) A person (A) victimises against another person (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act

Answer 125

So last is vicimsation V r.a.w in essence where a worker challenegs their employer e,g issue grievance against them, might brig claim against them ad makes c suspect any maltreatement after having challen eged employer is revenged. That worker being vicitmised simply bc c has broguh grievance rpeocudre or claim against employer but as ever starting point is primary source= stat. R,.aw. 1st note- this isonly1 of 6 prhib conduct that refers to protect act that prohib charactersitc

Answer 126

(2) Each of the following is a protected act – (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act

Answer 127

These are protected acts r..aw So going back our scenario with hea and fact pinched bottom if 3rd party stood up then 2b might relate . Caputal is c D In essence a protected act covers anything- anything employer wouldntt ake kindly to.

Answer 128

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith (4) This section applies only where the person subjected to a detriment is an individual (5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule

Answer 129

Subs ec 3 closest to defence

Answer 130

Protected Act rather than Characteristic It’s worth noting from the outset that s 27 is the only 1 of the 6 types of PCo which does not refer to a PCh Instead, s 27 refers to a protected act (PA)

Answer 131

This only 1 of 6 types of prohib, relates t o protected act than protect char. Erm alray agreed earlier. S.26 27nno need for comp

Answer 132

Comparator We agreed in lecture 3 that, whilst the PCos at sections 15 and 20 EA require no comparator, those at sections 13 and 19 EA do require a comparator We then asked ourselves, earlier in this lecture, what, therefore, is the situation re s 26 and s 27 EA We agreed that, like the PCos at sections 15 and 20 EA , but unlike those at sections 13 and 19 EA, those at s 26 and s 27 require no comparator

Answer 133

Is there any defence to s 27? We saw in lecture 3 that a defendant employer has 2 potential defences to a s 15 claim, at s 15(1)(b) and s15(2), but no ‘official’ defence (only 2 counter-arguments) to a s 21 claim re s 20

Answer 134

We then saw in lecture 4 that the answer to the question of whether a defendant employer has a defence to a s 13 claim depends on the PCh in question (eg proportionality can be a defence re the PCh of age) but, as a general rule, the only defence an employer defendant can argue is a genuine occupational requirement (GOR)

Answer 135

No defence but closes get is sub sec 3 a coutner agr saying any ev provide gien is fale. Maybe some sya did pinch but prson nowhere near- ther is no defence to s.27 That said

Answer 136

We then saw in lecture 5 that a defendant employer has 1 potential defence to a s 19 claim, at s 19(2)(d) Earlier In today’s lecture, lecture 6, we agreed there is no defence to s 26 (because the objective test an ET will apply renders lack of intention on the part of the defendant employer irrelevant) but a defendant employer (but not a fellow worker) does have, at s 109(4), 1 potential defence to its vicarious liability Lecture 6 Activity 4: Maybe we know but, if we had to guess, do we think there is any defence to s 27?

Answer 137

Answer: The answer is that there is no defence to a s 27 claim The closest equivalent to a defence is where a defendant employer can prove that s 27(3) applies in that any evidence or information provided by the claimant was false and therefore does not amount to a protected act

Answer 138

However, it can be very difficult for a claimant to prove s 27 because they must establish a conscious connection between the alleged detrimental treatment by the employer and the claimant’s previous complaints against the employer

Answer 139

There is a mmajor prob with c arguing victimi- bc unsually being understanding towards worke,r theye stalshed a point of law common law that’s statcualy veye uh in faour of employer where victimisation claim is in play. That fatc that tribunal estab tht for c succesffuly to argue that vict under s.27 that c worker must oncivne tribual there was CONCIOSU CONNEC BETWEEN TREATMENT AND FACT C had prop brought claim or raised griavnace against employer. e.G evr since raised grev ive ben made to workins toe cupboard ep by cllegauge sure theres a link. If no link cant bring claim. That was problem in case of mr n.

Answer 140

This difficulty for a claimant to prove victimisation was confirmed by the HL in the case of Nagarajan v London Transport 2000: After he had brought several claims against London Transport, Mr Nagarajan applied for a promotion to Travel Assistant Mr Nagarajan felt he was the best candidate for the promotion After he missed out on the promotion, he brought a s 27 victimisation claim against London Transport The HL: found for London Transport The HL confirmed that a claimant alleging s 27 victimisation must establish that the defendant, in subjecting them to a detriment, had a motive which was consciously connected with the claimant’s previous protected act(s), and Mr Nagarajan had failed to do so

Answer 141

Mr n sevrral claim and no prolmotion- hol said u can tjust come promoto cos brought claim cos otherise evry person would bring griev miss outpromot thas hwy and wer not ahpp sufficnelty prove kink. Could be that u weren best can. Ur maing presump that ur being victim. That’s why so diff.

Answer 142

Burden of proof As agreed earlier in this lecture, lecture 6, we’re hopefully bored by now of agreeing that s 136(2) states that the court must hold that discrimination occurred if there are facts from which it could decide that it occurred, so that all a claimant needs to establish is a prima facie case that it’s possible they’ve been discriminated against (but it can be very difficult for claimants to provide evidence) We’re hopefully similarly bored by now of agreeing that, by contrast, the defendant must provide an adequate explanation in the form of a denial or a justification which leaves the ET in no doubt that ‘in no sense whatsoever’ (Barton 2003) did discrimination occur

Answer 143

b.Lop imbalanced.

Answer 144

Lecture 6 Activity 5: Let’s, as we always do, reinforce our understanding of the law we’ve learned in this lecture about s 27 by applying it to a typical problem-style question of the kind we might encounter in our exam: Kylie works in Brunt’s Limited, a large department store. She has always enjoyed working as a sales assistant on the shop floor as she feels her strength lies in interacting with customers. A month ago, Kylie came out as a lesbian.

Answer 145

Last excercis eapplying law just learnt – and if does come up in exam tends to come u wit ahrras- so if gonna learn one learn with another. If only 1 turns up = harassment. Never get s.27 on won cos not much tot alk aboujt.

Answer 146

For a fortnight afterwards, Dani, a colleague of Kylie’s on the shop floor, made several derogatory comments about Kylie being gay. 2 weeks ago, Kylie raised a formal grievance about Dani’s behaviour and threatened to pursue claims under s 13 and s 26 EA in the ET if she continued to make derogatory comments. Happily for Kylie, raising her grievance had the desired effect on Dani, who immediately stopped making derogatory comments. However, Kylie’s line manager, Francesca, to reduce confrontation between her and Dani, has now moved Kylie away from the shop floor and put her on stock room duties, which she hates DIRECT DISCIR AND HARRAS

Answer 147

Please advise Kylie as to: (a) whether she might be able to bring a victimisation claim against Brunt’s Limited; (b) if so, her prospects of success, including an assessment of whether Brunt’s Limited might be able to defend her claim; and (c) providing figures where possible, the various elements of any remedies an employment tribunal is likely to award to Kylie should her claim be successful.

Answer 148

SO layout again consisted exam as poss | 1st 5 pont part a 6 and 8 part b and 7b covers c

Answer 149

Suggested answer: Let’s, once again, remind ourselves that, to achieve a high mark in a problem-style question, we must: (i) identify and briefly explain any relevant law; and then (ii) apply that law, accurately and in detail, to the facts we are given in the question, spelling out the obvious Let’s also remind ourselves that, to achieve a 1st, we should strive to demonstrate evidence of wider reading

Answer 150

Finally, let’s also, once again, remind ourselves of our recommended answer structure for each potentially relevant claim in a problem-style question: Background / definition / legal position /options: Law: background & definition, Application: legal position & options Venue: Law: Application: Claim form and time limit : Law: Application: Eligibility requirements: Law: Application: Further requirements: Law: Application: Burden of proof: Law: Application: Likely awards if success possible: Law: Application: Claimant’s prospect of success: Law: Application:

Answer 151

Raffle through t Back- began ea 1970 now ea 2010- def= s.27 deals with rpetced act that cha- maybe highlight essen covers claim info evidenc eprovided agaisnr mwpluwy, applica legal pos – prob has grpudn s.27 vic claim cos did carry out prteced act and evr since move dform shop floor which she loves and sotck room hates. Link – options. She oudl do nothin, she could leave or stya bring claim

Answer 152

Venue et- et1 brunt lim and tribunal and nees to fills.8 about claim s.9 remedies shes seeking .

Answer 153

Timelimit s,123- 3 mont hs discrim act 2 weeks ago 2 months left she within time lima nd should brign claim asp.

Answer 154

Elig= needs 1 of 9 protech acts so needs 1 of those act listed in subs ec 2 and I cos raising of grievence- neds 6 types of prhobi cond= civt

Answer 155

Furthreq- compartor but v don’t require c = PAART A ‘ | PART B= pospects – loo b.op and prospect

Answer 156

– b.op imbalance all c possible discrim but employer needs to estab no snese whatsoever – might this stage mention mr m case n cos oconf of difff created by justice sytmre inreq v claimant they can estab conscience link reason punished os broguh claim aginst employer. Now acas non sta guideniens say c entield ask q of employer and tribunal an bring adverse inference elack of answer o vague.

Answer 157

Applying all lawe to these facts. In terms of q might ask if brunt limi any prev vic claims, and hoe have if have what was th eotucome. ALWAYS BRIN 2 3 EXAMPLE OF Q’ nad in terms whether she ca estab a conscious connection- btw faatc that brogh grievance procedure and imemdialy taken off shop floor. Made clear love shop flor if not me that’s done harrasin why me being punished surel it should eb danni ins otck room to estab conscious connection. But sems more ironic to klae shop floor. But as ever entiel say look we ned more info. So what this answer is is answer based on info have so far.

Answer 158

Likely awards= declar recommend decl victimised – certain brunt don’t want bad pub she might be glad of recommed training, on espeiclaly manage of victim but most of all want damages to injruies to feelings. Bit most of all this is one off inc. so shes brogh clam absed on fact raise greivence procuedre and 1 and only concern taken off shop flor might argue yes shes not dogn what she wants that relentless. So as logn a su uspupprot uess with reason 6,00 on e off but if think more evrydya working where sh don’t fine cos backed it up.

Answer 159

Int emrs of conclusion again with all discrim claims much depdns on what facts we can estabsuehd. Difuclty is proving conscious connection b tw punish and fact riase greivenace. But does seem more coincdene and quite drastic epressd love and putsomehwere ya they hate so she has reaosnabel CHANCE OF SUCCESS!

Answer 160

Review: Having completed lecture 6, we should now be able to: (i) explain in detail and apply the law on remedies re a discrimination claim; and (ii) explain in detail and apply the remaining 2 of the 4 main types of prohibited conduct (PCo), namely: S 26: Harassment; and S 27: Victimisation; the other 2 main types being: S 13: Direct discrimination; and S 19: Indirect discrimination

Answer 161

Preview: Lecture 7: In lecture 7, we’ll finally move away from discrimination law and consider the topic of health and safety law

Answer 162

Seminar 3: We have an activity to prepare in advance of seminar 3, in which we’ll reinforce our understanding of 1 of the 6 types of PCo, namely: S 13: Direct discrimination by applying our knowledge of the relevant law to a problem-style question on this type of PCo

Employment Law 6 - Lecture 6: Discrimination Law: Remedies and Prohibited Conduct: Harassment, Victimisation Flashcards

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