Employment Law - lec 2 -protected characertistics Flashcards

Question

What is it worth looking at also ?

Answer 1

Looking at the equality and human rights commission code - but recent case law is also informative

Answer 2

Look at each case see whether tribunal or court decided in factor of c.

Answer 3

Miriam o Reilly v bbc

Answer 4

Miriam 1 of 4 female presenters in 40s /50s of protramme A she said only sacked bc age and she brought discrim claim AGE RANGE - s 5 1 b

Answer 5

Et found - mo re pch of age but NOT SEX Said perfectly fine for tv to appeal to younger was a LEGIT AIM within the employment equality age regulations 2006 - it was not convinced that this required employing younger presenters FAVOURED C

Answer 6

Seldon v cwj

Answer 7

Seldon partner in law firm - h didn’t retired - they said 65 u had a food run - retirement policy st she of 6 - s brought discrim claim against cwj re the pch of age range s 5 1 b - saying force to retire = discrim

Answer 8

Et- eat - ca and sc all found against S -failed at all stages Cr said cwjs retirement policy was PROPRRIOANTE means of pursing a legit aim within EEAR , giving younger assoc opportunities of partnership The facilitation of inter generational fairness and dignity is in the public interest He tried specific age and failed again Ct said he signed partnserhsip deed - said retir at 65 he should ahem accepted that

Answer 9

Under a 5 1 a - 65 was cwjs retirement age Et found against 65 was proportionate as was the default retirement age ( this has now been phased out ) All Parker’s signed partnershipndeed which 65 - clearly identities as retirement age

Answer 10

In U.K. implementing the framework directive - it first adopted a default retirement age of 65 yrs old- abolished in 2022 - but still remains possibility of an employer justified retirement age

Answer 11

If employer wishes to have compulsory retirement age, then the employer must show that it is for a legit aim and that retirement is properioante - appropriate and necc- means of achieving that aim Seldon c clarkson weight and jakes

Answer 12

MAKE POINT THAT DEFAULT RETIRMENT AGE WAS INTRODUCED SAME TIME AS REGULATIONS WHICH MADE AGE DISCRIM IN EMPLOYMENT UNLAWFUL- as a cumpuslory retirement age in itself age discriminatory It seemed a strange policy to adopt - the default retirement age was abolished in 2011

Answer 13

The charity age U.K. R(on the application of age U.K. v Secretary of State for business 2009

Answer 14

Important q in case which went to ecj- whether default retirement age was proportionate means if achieving a legit aim, the high ft held that it was so in facts, but if fog had not been carrying out a review or had tried to introduce in 2009 rather 2006 then court would she. Arrived at diff decision

Answer 15

The issue of an employer justified retirement age was discussed in seldon held that it was possibly to justify cumpolsory retirement if this was prior means of achieving a legit aim

Answer 16

Lockwood v department of work and pensions

Answer 17

26 ms Lockwood was in younger age group chosen by deep as POOL FOR REDUNDANCY before an older group Claimed against cwj re pch of age range s5 1b for being too young Discrim ahaisnt young?

Answer 18

Eat found against l Dwp policy legit - widely accept policy for redundancy A policy to make younger group of employees redundant ahead of an older fril bc younger people more emplohabke falls within EEAR Also a last in 1st policy is standard practice in redundant situations

Answer 19

John mccrick v channel 4 tevelebsopn coropration and img media

Answer 20

Sacked and channel 4 came up with new younger presenter, said he kmt getting rid is age range - s 5 1 b - did he succeed

Answer 21

Et found against 2 reasons - c 4 had legit aim within EEAR of attracting a wider audience to - jm dismissal was due it to his age but his persona, et ruling that he held self described bigots etc - unparablw for wider audience Compare against Miriam but Miriam don’t need younger presents but his dismays weren’t due to age it was due to him being bigoted and shovanisirc

Answer 22

Et eat ca Hl Found no age discrim in 3 our 4 cAses Proves not way to succee with discrim claim re the pch of age —MIGHT WANT TO ADD IN EXAM ESSAY STYLE IR SEM Q- Suggests U.K. discrim law Favour of workers- Cavour of worker? But only 1 succeed?

Answer 23

As with other state and regulation protection is offered against direct and indirect discrim, harassment and victimization - the definition of direct and indirect discrim is same for all other unlawful grounds of discrim

Answer 24

It is permissive to directly discriminate on the grounds of age in some circumstances - there is a req to show that the less favorable treatment is a ‘proportionate means of achieving a legit aim’ the defendant employers must prove that the difference is OBJECTIVELY JUSTIFTED

Answer 25

Hampton v lord chancellor - come back

Answer 26

Compare the treatment of age discrim with other unlawful grounds and point out that there are more exceptions to age discrim in the equality act than in relation to any other protected characterizes

Answer 27

Lord registry v houghton- come back to

Answer 28

The directive permits in certain forum - positive discrim in favor of the disabled employee or alllicant by imposing this duty of reasonable accommodation

Answer 29

A person is disabled if : S.6 1 a - he or she has a physical impairment S.6 1 b - the impairment has a substainsk and long term adverse effect in his ability to carry it normal day to day activities

Answer 30

1- physical or mental impairment 2 substantial and long term adverse effect 3- and ability to carry out normal day to day activities

Answer 31

Remember to apply each of 3 element of legal definition or the facts above So in essence know only a and b but there’s 3 elements contained within

Answer 32

Certain condition are not treated as impairments for purposes of the act- these include addiction to alcohol nicotine or Ang other substance unless the addiction was originally the result of medically prescribed drugs or treatment ??

Answer 33

Identify whether the impairment is physical or mental Need to know for prob Q

Answer 34

How impariement was caused is irrelevant as confirmed by eat in case of power v panosonjc

Answer 35

Annette power was sales manager but reduced sale Managers She said unaccapetae ended up spending some time of sick with depressed Remained of work until summarily dismisses Brought a discrim claim against pul under disability discrimination act 1975 arguing that depression was a mental impairment

Answer 36

She confessed she theened to drink - drunk heavily and came depressed Experts for both sides tried to identify which dame 1st - depression or alch abuse

Answer 37

She was not disabled -despite fact she psychiatric evidence that she was depressed Et applies reg a 3 q meaning of disbabilty regulations 1996 which stated ‘addiction to alchol nicotine or any other substance is to be treated as not amounting to impairment - relates back to that revision tip

Answer 38

Overruled et and found ap was disabled

Answer 39

Et has not properly considered whether ap depressed. Had had a substantial long term adverse effect on her ability to carry ot normal day to day activities Wrong guessing which came first depression or alch bc how impairment caused is irrelevant

Answer 40

Addictions such as alchol addiction are not themselves accepted as impairments as they need to have caused an impairment but in apps case it had

Answer 41

Her alcohol addiction was therefore irrelevant to her mental impairment of depression Use power v pan- show that how impairment comes is irrelevant

Answer 42

Substantial Nd long term adverse effect

Answer 43

Substantial - substantial is interpreted at s212 ea as MORE THAN MINOR OR TRIVIAL

Answer 44

Goodwin v patent office

Answer 45

That the focus of its attention is on the things that the applicant can either CANNOT do or can only do with difficulty, rather than in the things that the person can do

Answer 46

Paranoid schiz - worker at patent office though others could hear him access his hiughrs etc - but was able to care for himself at home deal with shooing cooking etc -collegUes complained too hard to wrk with him and Goodwin was dismisssd

Answer 47

Foreerunner of employment tribunal held he was not disabled The adverse effect of his mental impairment on his normal day to day activists was not substantial since Hess able to perform his domestic activists without assistance and to carry out his work to a satisfactory standard

Answer 48

Overturned the it decision finding was disabled Eat gave guidance generally in proper approach for determine in whether disable Focus on what can’t do opposed to can do

Answer 49

The effect of impairment is long term if S 2 1 a - it has lasted for atleast 12 months S2 q b- it’s likely to last for atleast 12 months S 2 1 c - it’s likely to last for the rest of the life of the person

Answer 50

Likely should be interpreted generously as might well as was confirmed in HL in case of sca packaging Ltd v Boyle 2009 And even if might be case last 12 months should be enough

Answer 51

Chronic problem with hoarseness was due to nodules in her vocal cords- operation to remove but they came back Eb brought 3 dda 1975 claims against sca Belfast it : eb was disabled person by reason of problem with her voice Scapl ap Wales

Answer 52

Considered how it should apply word likely in s 2 1 of schedule 1 at b and c to the words has a subsrainal adverse effect in s6 1 b

Answer 53

It decided that it would suffice if such an effect MIGHT WELL last for such periods bc a high test requiring to proof of on a balance of probabilities would be both undersiae and unnessccary

Answer 54

An event which is likely may be an event which is probable but it may also be an event which while not probable could well happen

Answer 55

Must be more than a mere possibility that the impairment would have such an effect for such a period of time

Answer 56

Arguing that a tribunal surely had to be satisfied on the balance of probabilities, that the substantial adverse effect would rather than MIGHT WELL happen

Answer 57

Agreed with ca and found that the word likely, should be used in the sense of might well So in other words interpreted likely might well last 12 months rather than will probably last 12 months - tribunal will consider long term generously in favour for worker

Answer 58

hewett v motorola

Answer 59

associative discrimination

Answer 60

i.e whether a person who is not disabled himself can claim to be protected by assoc with a person with a disability?

Answer 61

attridge v coleman?

Answer 62

EA 2010 has defined direct dsicrim in such a way as to include others who may suffer discrim bc of their assoc with someone who has protected ch such as disability

Answer 63

Application of (iii) ability to carry out normal day-to-day activities:

Answer 64

S 5(1) of Schedule 1 EA tells us that: An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if

Answer 65

(a) measures are being taken to treat or correct it; and | (b) but for that, it would be likely to have that effect

Answer 66

S 5(2): ‘Measures’ includes, in particular, medical treatment and the use of prosthesis or other aid

Answer 67

The beneficial effects of treatment should be disregarded in assessing a person’s ability to carry out normal day-to-day activities, as was confirmed by the EAT in the case of Kapadia v London Borough of Lambeth 2000 (see next slide)

Answer 68

So I other words means if say u r receiving phiso therpay or on drugs to counter an imparimetn and tnhats the only reason u can do thjings then phiso therp treatment and medication disragred. Ur abilikty to do things is assessed when didn’t gfet any help. If didn’t have physi or drugs wuld u be able to do thjos things, confirmed by appeals tribunal in case of Kapadia.

Answer 69

- Mr Kapadia (K), a qualified accountant, worked for the London Borough of Lambeth (LBL) - In April 1995, K consulted his GP re his anxiety, stress, tension and depression - K’s GP diagnosed reactive depression and referred K to a consultant clinical psychologist, who saw K about 20 times over the next 2 years -In early 1996, K successfully applied for promotion to the post of Senior Accountant for the LBL However, K complained that his duties in the new post were different from those in the job description

Answer 70

- K started to take more time off work for illness and medical visits - On 9 April 1997, LBL referred K to its medical adviser, who advised that K was permanently unfit to undertake his duties and should be considered for ill health retirement - On 30 June 1997, K was retired on medical grounds with an immediate pension

Answer 71

- K claimed under the DDA 1975 against the LBL - The ET: K was not disabled -Although K’s reactive depression was a mental impairment with an adverse long term effect, there was no evidence that the impairment had anything more than a trivial effect upon his ability to carry out normal day-to-day activities he claimed under diability discrim act . The employment tribunal said not disabled

Answer 72

- The EAT: overruled the ET and found that K was disabled - The EAT ruled that, in reaching its conclusion, the ET had disregarded the uncontested evidence of the applicant's doctors and had not taken into account the effects that the applicant's depression would have had were it not for the treatment he was receiving for it by way of counselling - They sia dhe was disabled. R,a.w said that the therpay he was receiving should have been ignored by employment tribunal and should be asses had he not had help

Answer 73

Every person with a disability is unique and there’s a high evidential burden to prove disability exists Medical evidence is just one element It’s harder to establish a mental impairment - stress or anxiety - than a physical impairment

Answer 74

reinforce our understanding of the definition of disability by applying it to the following 3 scenarios In each case, we should evaluate whether the s 6 disability definition is satisfied

Answer 75

Scenario (i): 2 months ago, Josh (J), who is employed at a marketing company, had a horse riding accident and suffered a back injury. He is currently being treated at a specialist hospital and, whilst he is undergoing treatment and physiotherapy, he is restricted to using a wheelchair. J is currently unable to stand, although the doctors have said he may be able to walk in the future with a frame.

Answer 76

Is josh disbialed- physical or mental – physical, likely to last moer than year , is it going to susbtainally impair –YES IMPARIMENT SUSBTANTIAL TREATMENT ETC AND DAY TO DAY ACTIVITES DO WITH MORE INFO CAN HE WAS HIMSELF ETC BUT HES LIEKLY TO BE DISABLED.

Answer 77

Suggested answer: Impairment:? physical: back injury Substantial?: treatment and wheelchair Long term?: 2 months ago and still in wheelchair Day to day?: need add. info: washing? dressing? Conclusion?: likely to be disabled

Answer 78

Scenario (ii): Boris (B), who works as a caretaker in a primary school, has been feeling ill for several weeks with flu-like symptoms. He is waiting for the results of an HIV test. B has been a drug user in the past and he believes that he could have contracted HIV from sharing needles.

Answer 79

Is he disabled?- impariment

Answer 80

Suggested answer: Impairment?: physical: flu-like symptoms Substantial?: not yet unless HIV confirmed Long term?: if HIV, upon diagnosis as is a progressive illness Day to day?: if HIV, will do Conclusion?: if HIV, disabled as progressive

Answer 81

Scenario (iii): Keira (K), who works in the call centre of a bank, has been diagnosed as suffering from seasonal affective disorder (SAD). This means that her mood is affected by the seasons, and she gets depressed during the winter months. There is medication available for SAD, but K does not like the side effects of the medication.

Answer 82

Ye sshe diabkled. We tend ot think disabled as only phycal but ehre is mentally disabled.

Answer 83

Suggested answer: Impairment?: mental: depression from SAD Substantial?: SAD is progressive, so yes Long term?: upon diagnosis, as SAD is a progressive illness Day to day?: SAD is progressive, so yes Conclusion?: SAD is progressive, so disabled

Answer 84

this is just overview of prohib char - so go in depth next time

Answer 85

6. Race: Race is defined at s9 EA

Answer 86

LFT can be due to: s 9(1)(a): colour; s 9(1)(b): nationality (eg British, Indian, Swiss); or s 9(1)(c): ethnic or national origins (eg Romany)

Answer 87

implementing pricipl of equal treatment btw persons irrespective of racial or ethnic orgin is important european initative in tckling race discrim in europe

Answer 88

purpose of directive, contained in art 1 - lay down a framework for combatting discrim on the grounds of racial or ethnic orgin, with a view to putting into effect in the ms, the principle of equal treatment

Answer 89

concerned with meaning of direct and indirect discrim.

Answer 90

it is a scope of course is wider than just employment, but those areas that are related to employment are also similar to equal trement in employment directive - which as previously stated is concerned with discrim on grounds of age, disab, religion orbelief , or sexual oritentaiton

Answer 91

centrum voor gelikeid van kansen v firma feryn case c 54/07 2008 irlr 732

Answer 92

those who have any of these charac can be described as a racial group

Answer 93

race- being black or white nationality - being british or say australian ethinci or national orgin- include being froma roman background or chinese heritage racial group- black britons

Answer 94

Lecture 2 Activity 4: Let’s reinforce our understanding of race by applying s 9 to the following 2 groups (i) Sikhs (ii) black Britons In each case, we should state whether the group is protected under s 9(1)(a) colour, s 9(1)(b) nationality, s 9(1)(c) ethnic or national origins, or a combination of the above

Answer 95

Suggested Answer: (i) Sikhs are a protected racial group under s 9(1)(c) ethnic or national origins, as they have a distinct community, culture and language (ii) black Britons encompass 2 racial groups so are protected under both s 9(1)(a) colour and s 9(1)(b) nationality

Answer 96

type from phone

Answer 97

rasatafarians

Answer 98

dawkins v department for the environment

Answer 99

r - e v governing body of jfs

Answer 100

it is possible for a person to be unfavoiurable treated on racial grounds even if ..

Answer 101

7. religion or belief: Religion or belief is defined at s10 EA

Answer 102

LFT can be due to: s 9(1): any religion or lack of religion; or s 9(2): any religious or philosophical belief or lack of belief NB: S 9 also covers lack of belief (so eg atheists are protected)!!

Answer 103

Muslims, for example, are not protected under the PCh of race as they can come from many different countries, so they are protected as a religion under Islam

Answer 104

The very broad definition for religion is in line with freedom of thought, as guaranteed by Article 9 of the European Convention on Human Rights (ECHR)

Answer 105

Article 9 ECHR only affords protection where there is a clear structure and belief system (eg Islam, Judaism)

Answer 106

Philosophical belief must be genuinely held, be more than an opinion and must not conflict with basic rights (eg Humanism, Darwinism) Supporting a football team doesn’t qualify!

Answer 107

There have been a lot of interesting cases, often reaching the European Court of Human Rights (ECtHR) in Strasbourg, re the PCh of religion or belief

Answer 108

think about and research potential conflict btw the desire to protect those that wisjh to proactise their religion and desire to protect people on the basis of sexual orientation, if a person is barred from working fro a reliious org bc theya re gar, they are being discrim against bc of their sexual orientation, but at ame time, there is a req to respect the beliefs of the relgiious body.

Answer 109

Lecture 2 Activity 5 The facts of 1 such interesting case are set out on the next slide For this activity, we have to read the facts and then take an educated guess whether we think the claimant won We should provide reasoning for our educated guess

Answer 110

Eweida v British Airways 2010:

Answer 111

Eweida v British Airways 2010: Nadia Eweida (NE) was a BA employee BA had a policy of not allowing employees openly to display religious symbols NE insisted on wearing a Christian cross around her neck BA sent her home NE argued it breached both sections 4 and 10 of the EA and Article 9 of the ECHR Do we think the ET decided in favour of NE? And why? whch lists 9 protechted charact and 10 covers religion belief of lack of belief of equality act an article 9 of echr

Answer 112

Answer: In the UK, the ET: found for BA Although the wearing of garments is a requirement of some faiths, wearing a cross is not necessary in Christianity NE did not suffer less favourable treatment (LFT) than an employee of a different religion who refused to remove an unnecessary garment would have suffered However, NE then took her case to the ECtHR

Answer 113

Eweida v UK 2013: NE’s case at the ECtHR in Strasbourg was against the UK Government for failing to provide domestic law to protect her rights Do we think the ET decided in favour of NE? And why? -Case aginst uk and said the uk shuld lose case cos fail to provde domestic law to rptoect her rights. Yes they found for her her article 9

Answer 114

Answer: In January 2013, the ECtHR: found for NE NE’s Article 9 ECHR rights had been violated because BA had not reached a fair balance between NE's religious beliefs and BA's desire to have a particular corporate image The ECtHR awarded NE damages of €2,000 plus costs of €30,000

Answer 115

they said no grey area in the middle – cross would ahv changed the ia,ge She was awarded damages and costs o f30,000 Strasoborug is famous for 2 things, 1 is protecting indivd righrs and very often founding for c- and other is paying them next to notjing, 2,000 eurs…:/ - can found but bad in financial terms.

Answer 116

relgioous requirements relating to sex, marriage, etc, and sexual orientation

Answer 117

8. Sex: Sex is defined at s 11 EA

Answer 118

S 11 covers both: (a) : a man or a woman; and (b) : persons of the same sex

Answer 119

provides in art 1 that its purpose to 'ensure the implentation of the principle of equal opp and equal treatment of men and women in matters of employment and occ-

Answer 120

states that for purpose of the directive, discrimination includes - harrass- type on phone

Answer 121

sex quite short so might not be impor for exam but still revise

Answer 122

primary purpose , the removing of dsicrim btw mena nd women, it does not necc require the same treatment as btw mena nd women. aim is to ensure that 1 gender is not treated less fav than the poother

Answer 123

although [primar purpose of ea 10 in relation to sex is to protect women for discrim, it also has effect of protecting men from discrim on grounfs of sex.

Answer 124

has been the impossition of dress codes that might be different for men and women smith v safeway plc

Answer 125

9. Sexual orientation: Sexual orientation is defined at s 12 EA

Answer 126

S 12(1) covers: (a) : persons of the same sex;- applying to gay mena nd lesbains (b) : persons of the opposite sex; or- hetreosexuals (c) : persons of either sex - bisexuals

Answer 127

thus a man and woman being attracted to people of opposite sex share a sexual orientation as do men only attracred to men and women only attracted to women

Answer 128

there is potential for conflict with the provisions of ea 2010 in relation to the protection of religion or belief. 1 example of this found in ladele

Answer 129

Review: ``` Having completed lecture 2, we should now be able to summarise more detail re the protected characteristics (PChs) of: age; disability; race; religion or belief; sex; and sexual orientation ```

Answer 130

Just gentle intro to protected charastics. Tp1 nitty critty starts at lec 3 look at prohib conuct and that’s the claim part.

Answer 131

Preview: Lecture 3: In lecture 3, we’ll consider the 2 of the 6 types of prohibited conduct (Pco) which relate specifically to disability Seminar 1: Those of us still to attend seminar 1 have 2 activities to prepare in advance of seminar 1, in which we’ll reinforce our recommendations for improving our exam technique and tackle an essay-style question on the general principles of UK discrimination law

Employment Law - lec 2 -protected characertistics Flashcards

(172 cards)