Equality Flashcards

Question

Bougnaoui v Micropole

Answer 1

OR Application in dress code cases: **Cannot use a general occupational requirement in relation to religion.** Worked at a design engineer at Micropole, she was a Muslim and advised that some customers would reject to her wearing a headscarf at work. A customer complained about her and was then instructed by the company to not wear the headscarf because they wanted to be neutral for customers. She was then dismissed for not following instruction. Question: was employers decision to take into account customers wishes for neutrality rule an occupational requirement? Held: this was direct discrimination. If it were to be direct discrimination could there be an occupational requirement. Held: it was not a genuine occupational requirement to take into account wishes of customers, “only in very limited circumstances be a religious requirement be an occupational requirement, it must be an objective requirement relating to occupational activities concerned”. So it must be objective or in the context they are carried out. In this case, it was subjective (to place considerations of customer above the employee). A-G was more strict saying direct discrimination and you could not have religion as an occupational requirement because it was contrary to human rights freedom of religion. compare the Opinion of AG Sharpston with the judgment of the Court.

Answer 2

**Indirect discrimination:** application of a provision, criterion or practice – statistical evidence of a significant disparity sufficient. There was a comparison made between pay of pharmacists and speech therapists in health service. Method of payment was a PCP, men and woman could carry out both professions, but statistics showed that predominantly pharmacists were male and speech therapists were female. Statistics shows skills involved, degrees gained was comparable, so it was enough to show a disparity.

Answer 3

Indirect discrimination: application of a provision, criterion or practice disabled employee who had reduced his hours to reflect disability was required to work longer hours to reflect similar hours of others in workplace. Was that a PCP? Held: it was (repeated requests by employer pressurised him to agree) – was a PCP

Answer 4

Indirect discrimination: application of a provision, criterion or practice P was a teacher. Husband was Head Teacher. Husband convicted of making indecent images of children. She was told if she wanted to continue to work at the school, she would have to leave her husband. P refused to leave her husband and continued working at the school. Had strict Christian beliefs and believed in the sanctity of marriage vows. School dismissed P for failing to end her relationship with her husband. Held – school’s policy of dismissing someone who had chosen not to end their relationship with a convicted sex offender was a ‘practice’. P was in a group of people who shared a ‘belief’ in the sanctity of marriage vows. Held: practise of school they had chosen to apply in this particular situation and fell within PC because it was a belief( religion or belief), practise which put someone who had a particular belief at a disadvantage. You needed to put it with a particular characteristic.

Answer 5

**Indirect discrimination**The *actual or hypothetical comparator* rule in s23 applies also in cases of alleged indirect discrimination. Old approach to group disadvantage – pool of comparison in the workforce required: relevant pool for statistical comparison – focus on advantaged group – emphasis on statistical evidence. Age limit of 65 to compete particular job, another rule, you could not bring an unfair dismissal claim if you were over 65. Statistics showed significantly more men than woman were affected by bringing unfair dismissal claims. Argument: collective disadvantage for men comparing men over 65 and woman over 65. Held: comparison should have been between ALL men and all woman. Looking at them as a country as a whole, statistics did not show that. Lady Hale dissented and said it should only be the disadvantaged group. Lady Hale’s approach is now SC’s approach. This also now follows approach of CJ. Rutherford approach replaced discrimination act with the equality act and reworded s19 to say “with that particular disadvantage” test

Answer 6

The *actual or hypothetical comparator* rule in s23 applies also in cases of alleged indirect discrimination.More recent approach – focuses on the disadvantaged group: CJEU test is there ‘a substantially higher proportion of women than men in the disadvantaged group?’

Answer 7

The *actual or hypothetical comparator* rule in s23 applies also in cases of alleged indirect discrimination: ofcus on the disadvantage group The Court of Appeal, applying the House of Lords decision in Rutherford and another v Secretary of State for Trade and Industry (No.2) [2006] IRLR 551 HL, agreed. The employment tribunal was wrong to reject the narrower pool that Mrs Pike had advocated. By adopting the entire teaching profession as the pool of comparison, the employment tribunal had brought into the equation people who have no interest in the advantage or disadvantage in question. – those who have no interest in the advantage in question should not be part of the pool of comparison. Retired teachers only considered as part of the pool – employer’s scheme allowed those in receipt of work to return to teaching only if they worked full-time. Claimed this was indirect sex discrimination because it disadvantaged a substantially higher proportion of women than men within the pool (if those who had not retired were excluded). There was re-employment scheme for retired teachers, the various teachers were retired so shortage of teachers. LA decided that the teachers could only return if they worked full time and statistics showed that this rule had the effect of disproportionately effecting woman because eof caring responsibilities, woman were not in same position as men to go back to work. Practise of employer to go back that disadvantaged woman in particular if you only make comparison for those who were retired. If you consider work place as a whole, it would not have worked.

Answer 8

The *actual or hypothetical comparator* rule in s23 applies also in cases of alleged indirect discrimination.More recent approach – focuses on the disadvantaged group: – per Baroness Hale: new formulation ‘was intended to do away with the need for statistical comparisons where no statistics might exist. It was intended to do away with the complexities involved in identifying those who could comply and those who could not and how great the disparity had to be. Now all that is needed is a particular disadvantage when compared with other people who do not share the characteristic in question. It was not intended to lead us to ignore the fact that certain protected characteristics are more likely to be associated with particular disadvantages.’ Statistics are relevant but in the Homer case, the new formulation of “at a particular disadvantage” was to do away with statistical comparisons where no statistics might exist, rather it looks at evidence of a particular disadvantage when compared with other people who did not have that PC. Statistical evidence might show more woman is disadvantaged but evidence as a whole might show more of a disadvantage, might take into account societal disadvantage (black and white people which might cause adverse impact).

Answer 9

The *actual or hypothetical comparator* rule in s23 applies also in cases of alleged indirect discrimination.But statistics can be a reliable pointer to show disadvantage: rule requiring train drivers employed by XCT to work at least 50% of their roster and on a number of Saturdays was a PCP - put women at a particular disadvantage. ET based its decision on the relative numbers and proportions of women and men train drivers employed by XCT who could and could not comply with the PCP. XCT employed 559 train drivers - only 17 (3%) were women. ET looked at number of train drivers, they said that statistics was so overwhelming that a rule requiring Saturdays and rule of requiring societal impact, showed that it disadvantaged woman of that PCP.

Answer 10

**Indirect discrimination** Individual disadvantage - ‘that disadvantage’ – no need to show why they have suffered the disadvantage – the fact of disadvantage is sufficient: imposition of new rostering arrangements discriminated against single mother. E was a train operator and when the new rostering system was introduced, unlike the other 20 female train operators and all the thousands of male train operators, she was unable to comply with the new arrangements. Held: appropriate food of employees was all those affected by the new shift arrangements. Tribunal could look at broader principles, such as more woman than men had child care responsibilities. The smaller number of woman train drivers meant that the small number who could not comply with the requirement to change the shift pattern was proportionately larger than equivalent number of men.

Answer 11

**Indirect discrimiantion** Individual disadvantage - ‘that disadvantage’ – no need to show why they have suffered the disadvantage – the fact of disadvantage is sufficient: skills assessment test in civil service, not intended to be discriminatory but evidence of a much lower pass rate among black and ethnic minority applicants. Evidence was put to show and satisfied tribunal and EAT that it was sufficient to show systematic disadvantage of a group. According to EAT no need for member of the group to show they were disadvantaged.

Answer 12

Disadvantage of a single individual but not a group is insufficient to show indirect discrimination: (silver cross) – BA’s policy prohibited visible jewellery from being shown over the uniform – E claimed religious discrimination when not allowed to wear a silver cross. Held: no evidence that a group of Christians were put ‘at a particular disadvantage’ by the policy compared with non-Christians. Some identifiable section of the workforce, quite possibly a small one, must be shown to suffer a particular disadvantage which the claimant shares. Solitary disadvantage is not sufficient. Rule was neutral PCP, Eweida objected because she wished to express her religious beliefs, she was told she could not wear this cross. Indirect discrimination? Held: no evidence that rule put Christians as a group put them in a disadvantage. Questions as a group whether they would be required to display their religious beliefs compared with non Christians. Minimum: some identifiable section of the workforce, even if small, must be shown to suffer a particular disadvantage which claimant shares. Fact this was a solitary disadvantage was not sufficient. Court of human rights in Strasburg found that UK law applied in Eweida case is below.

Answer 13

Disadvantage of a single individual but not a group is insufficient to show indirect discrimination: BUT - ECtHR found that UK law, as applied in E’s case, did not strike the right balance between the protection of her right to manifest her religion and the rights and interests of others. Her right to display her belief and rights of BA who wishes to apply this jewellery rule so it put the court of human rights, put freedom of religion at forefront of its view. In future, notwithstanding human rights approach to this, but court of justice has taken a different approach.

Answer 14

Disadvantage of a single individual but not a group is insufficient to show indirect discrimination:But less weight given to freedom of religion by the ECJ in: In Achbita v G4S the Court of Justice was asked whether a private firm could prohibit the wearing of Islamic headscarves by employees who dealt with customers, or whether this violated the ban on religious discrimination in the workplace, found in Directive 2000/78. The claimant, Ms Achbita, worked as a receptionist for G4S in Belgium. When she began wearing a headscarf she was warned that it was against company policy, which disallowed all religious, political or philosophical signs in the workplace. When she continued, she was dismissed. The Court found that under the right circumstances a company might be entitled to have a policy of this sort. One condition was that the policy must be in writing – in the interests of certainty and clarity. Another condition was that it must apply without distinction to all beliefs. employed as receptionist as G4S, this carries out duties in public section, there was not a written rule but an unwritten rule (custom and practise) from wearing employee wearing signs about their political, philosophical or religious beliefs. She informed her employer that she would like to wear her Islamic headscarf during working hours. They said this was contrary to position of neutrality adopted by G4S, they wanted to be neutral to public. Eventually, she returned to work wearing headscarf and was dismissed but only after a works council of company got together and put the rule in writing, by time she was dismissed it became a written rule. Held: PCP, but was it indirect discrimination did it put those who share similar PC at a particular disadvantage? CJEU held: such an internal rule does not introduce a difference of treatment. Not direct discrimination, indirect discrimination? Might be if it put persons adhering to PC at particular disadvantage. Found moving to third heading that there was objective justification, company’s desire to direct neutrality is legitimate only when workers involved are in contact with customers. As she was a receptionist, she applied. Criticism the way it was applied specifically to a religious headscarf, should it have been direct discrimination.

Answer 15

Both cases concerned, on differing facts, an individual female Muslim employee, who wished to wear a hijab at work. In both instances, this was not permitted by her employer, and both employees were dismissed. In Achbita, there was a rule within G4S that employees could not wear visible signs of their political, philosophical or religious beliefs in the workplace and/or from engaging in any observance of such beliefs. Pursuant to that rule, Ms Achbita was dismissed when she insisted on wearing her Islamic headscarf at work. In Bougnaoui, it was not clear whether there was any internal neutrality rule such as that in Achbita. However, Ms Bougnaoui had been told by her employer that her headscarf had upset its customers, and so the employer insisted on the need for neutrality. The French court referred the following question: Two very different opinions from AG Kokott (Achbita) and from AG Sharpston (Bouganoui) provided radically different reasoning and results, in respect of whether any neutrality rule could constitute direct or indirect discrimination, but also as to proportionality. AG Kokott placed heavy emphasis on the freedom of the employer to conduct its business, in line with Article 16 of the Charter of Fundamental Rights, and far less on the individual’s integrity and religious rights, whilst AG Sharpston adopted a more balanced approach that weighed both the employee’s individual needs and rights alongside those of the employer. As she said in her Opinion, “when the employer concludes a contract of employment with an employee, he does not buy that person’s soul”. [1] So, which route would the CJEU adopt? The Court decided in Achbita that the so-called neutrality rule could constitute indirect rather than direct discrimination.

Answer 16

Once the claimant has shown discriminatory adverse impact, the **burden of proof switches to the employer** to show justification - first, that the aim pursued is legitimate and, second, that the PCP is a proportionate means to achieve it. If the employer succeeds in showing justification on the facts the ET must find that there is no discrimination – see ECJ case law: employer must show objectively justifiable factors for the PCP unrelated to any discrimination on grounds of sex – the aim cannot be discriminatory. The measures taken must correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued, and are necessary to that end. Discrimination against part time workers in a pension scheme, this discrimination, PCP, impacted woman, satisfying 2^nd stage, could employer objectively justify it. Held: needs of business required that they reduced cost of pension scheme and apply it to part time workers was a proportionate means of the business. Might be decided differently now (part time discrimination) and proportionality test, saved money on pension scheme another way.

Answer 17

Once the claimant has shown discriminatory adverse impact, the **burden of proof switches to the employer** to show justification - first, that the aim pursued is legitimate and, second, that the PCP is a proportionate means to achieve it. If the employer succeeds in showing justification on the facts the ET must find that there is no discrimination – see ECJ case law: The defendant implemented a voluntary retirement scheme under which benefits were calculated according to the period of service of the employee. The plaintiff claimed that the scheme discriminated against workers who had taken career breaks, and therefore against women. justification for indirect discrimination in a redundancy scheme - *Bilka-Kaufhaus* applied . Redundancy scheme may have an impact on woman/young workers. Upheld on Barry that a real business need to make redundancies.

Answer 18

**Redundancy - length of service** Strict proportionality test: ET must apply a proportionality test – if measures were available to the employer that would have less of a discriminatory impact and these measures were not taken – would be disproportionate and such discrimination could not be justified. Lecturers dismissed by collage then re employed by agency. New contracts cut their pay and reduced sick entitled etc. Those made redundant and re employed were mainly part time lecturers, evidence showed particular disadvantage to woman, employer said it was a business decision applying Bilka. CA held: this was disproportionate, tribunal should have considered whether less discriminatory measures could have been used by collage to deal with budget problem, could have found alternatives.

Answer 19

*Strict proportionality test:* employer’s justification for discrimination on the grounds of religion or belief based on a legitimate aim and was proportionate – see also *Achbita* above.

Answer 20

*Strict proportionality test:* same height rule for men and women for police service in Greece – disproportionate – alternative tests of physical ability could have been used - would have been less discriminatory. Same height rule of police officer for men and woman in police service. Evidence showed on average woman shorter than men, could have been alternative tests for showing physical ability.

Answer 21

CA – rejected a ‘margin of appreciation’ or range of reasonable views test for proportionality in this context. It is a matter for ET to determine, upon a fair and detailed analysis of the working practices and business considerations involved, whether the proposal of the employer is reasonably necessary.

Answer 22

Strict proportionality test: – length of service selection criteria for redundancy was lawful because justified by the legitimate aim of rewarding loyalty, and desirability to achieve a stable workforce in the context of a fair process of redundancy selection. It was proportionate because length of service was only one of a substantial number of other criteria to measure the employees’ suitability for redundancy and was by no means determinative.

Answer 23

*Strict proportionality test:* employee dismissed on grounds of redundancy to avoid paying out for early retirement – cost of avoiding that impact could be disproportionately high – would be a legitimate aim – but cost alone cannot justify discrimination. Realising that Mr Woodcock was due to reach age 49 in June 2007 and that if notice was not given before then he would become entitled to an enhanced early retirement pension (at a cost of c. £500,000), the Trust dismissed him without formal consultation. Mr Woodcock brought claims to the employment tribunal for compensation for unfair dismissal and for discrimination on the grounds of age. Comments made by the EAT in relation to the doctrine that “costs alone” cannot be a legitimate aim, led to speculation that the doctrine might be weakened or even removed by this decision. This is not the case. While the Court of Appeal acknowledged “some degree of artificiality” in the required approach, it confirmed that an employer will need more than a saving or avoidance of costs to have a legitimate aim capable of justifying discrimination. Although employers may be disappointed that they still cannot justify discrimination on cost grounds alone, this decision is helpful for its acknowledgement of the role that costs can play.Mr Woodcock was the Chief Executive of the North Cumbria Primary Care Trusts (PCT). Following a reorganisation of PCTs in the North West in 2006, Mr Woodcock’s post disappeared and he was unsuccessful in securing a new position.

Answer 24

Harrassment ## Footnote Problem – the test has subjective and objective elements: subjective test – Ms Stedman resigned because of sexually provocative remarks made to her. The Employment Appeals Tribunal held that it was for Ms Stedman to decide what was acceptable or offensive. In upholding this decision, the Employment Appeal Tribunal refer to sexual harassment as consisting of 'words or conduct which are unwelcome to the recipient', undermining the employee's dignity at work and creating an 'offensive' and 'hostile' work environment. 'It is for the recipient to decide for themselves what is acceptable to them and what they regard as offensive'. This emphasis on the definition of harassment being a subjective matter to be determined by the recipient is significant

Answer 25

Harrassment the test has subjective and objective elements: objective element – a reasonable person’s understanding of the effect of the conduct. taking into account her subjective attitude to the incidents and the spirit in which they were made but giving those matters their proper weight in the circumstances. It was important to remember that sexual banter by a man towards a woman often had a wholly different effect on the recipient than banter between members of the same sex.

Answer 26

Harrassment Problem – the test has subjective and objective elements - Viewed objectively, the behaviour on three occasions by male colleagues clearly had the potential effect of causing an affront to a female employee working in the close environment and as such was degrading or offensive. This case was about colleagues (men) looking at photographic material at work.

Answer 27

Includes associative and perceptive harassment: ‘If … tormenting a man who is believed to be gay but is not amounts to unlawful harassment, the distance from there to tormenting a man who is being treated as if he were gay when he is not is barely perceptible. In both cases the man’s sexual orientation, in both cases imaginary, is the basis – that is to say, the ground – of the harassment. There is no Pandora’s box here: simply a consistent application of the principle that you cannot legislate against prejudice, you can set out in specified circumstances to stop people’s lives being made a misery by it.’ Sedley LJ,

Answer 28

EA protects people in all age groups and the comparison is with a person not of the same age group. For example, see: even though she worked 10 years, she only had 3 years taken into account. Comparing her group (those under 25) with those over. The reference point.

Answer 29

Age is the *only* protected characteristic that allows an employer to justify *direct discrimination* if it is ‘a proportionate means of achieving a legitimate aim’, EA s13(2).

Answer 30

AGE - General guidance from the ECJ: ## Footnote principle of non-discrimination on grounds of age is a general principle of EU law – therefore strict interpretation of justifications and proportionality .

Answer 31

AGE - **Max age. Justification - share out employment. Found: accetpable** ## Footnote maximum age for practice as a dentist in Germany – labour market justification, share out employment among the generations – legitimate aim, proportionate – must be applied in a consistent and systematic manner by the employer example of application of employment policy relating to maximum age. Maximum age of 68 found to be upheld. This was direct discrimination but justified on basis of the labour market, if you could do max age limit would help to share out employment between ages. Those starting career would be able to enter profession.

Answer 32

AGE ## Footnote The **leading UK case** on the scope for justification: narrower test for justifying **direct** age discrimination – per Baroness Hale – employers have flexibility to choose which objectives to pursue providing that: **LPCSP** * “*(i) these are legitimate objectives of a public interest nature (ii) are consistent with the social policy aims of the state and (iii) the means used are proportionate, that is both appropriate to the aim and (reasonably) necessary to achieve it.” **Facts:** Mr Seldon, a partner at solicitors Clarkson, Wright & Jakes, raised a direct age discrimination claim after he was forced to retire under the partnership deed. Employers would still be required to show that implementation of a mandatory retirement age is the only way of proportionately achieving the objective and it could not be achieved by any other means. This is likely to be a difficult evidential burden to overcome, and a policy which was once proportionate could become untenable over time with a change in the workforce or prevailing market conditions. Faced with such challenges, many employers have simply abandoned any mandatory retirement age at all.

Answer 33

Could be argued that *Kücükdeveci IS NOT compatible but you could still have a justification on a case by case basis on the facts, when length of service rules, particularly in redundancy scheme they have been sympathetic, this length of service rule could be argued to be indirect discrimination as does not specify age.*

Answer 34

Length of service AGE ## Footnote Ms Kücükdeveci worked for Swedex from the age of 18. She was dismissed at age 28 with 10 years' service. German law does not take into account time employed before the age of 25 in order to calculate service-related minimum notice periods in case of dismissal. Swedex therefore gave her notice of dismissal based on three years' service. Ms Kücükdeveci brought a claim arguing that this was unjustified direct age discrimination. Held: there was direct discrimination. Could it be justified?: the objective that young people had more mobility to find a job was taken onboard. They fell within Article 6(1) but CJEU decided that the law was not an appropriate and necessary measure for achieving these aims and was not therefore justified The case of Mangold v Helm saw a marked departure from the general rule on indirect effect. The ECJ found in Mangold that that the “general principle of non-discrimination” on the grounds of age is a general principle of EU law and rather than national law prevailing, the general principle should. In the present case, the ECJ was able to clarify what was meant. When a national law conflicts with a Directive on discrimination, it should be set aside, not because it conflicts with the Directive, but because it is not consistent with the general principle of non discrimination which underlines EU law.

Answer 35

*Kücükdeveci* raises serious questions about the compatibility of Schd 9, s10 with EU law. Consider the judgments in: CA having a length of service rule (take into account length of service as a number of factors to consider who is made redundant) this is in ambit of indirect discrimination and then justify it on basis of loyalty and business need.

Answer 36

**Recruitment age** – see the use of **occupational requirements** in: would be a justification. maximum recruitment age of 30 for fire-fighters justified as a ‘genuine and determining occupational requirement’.

Answer 37

Much of the litigation concerns rules on **retirement ages**. Retirement is no longer listed as permitted exception relating to age in the EA following the **repeal of the default retirement age** (DRA) of 65 with effect from October 2011. Note that after the abolition of the DRA it is still possible for employers to justify direct discrimination in a retirement scenario – or redundancy - if they can show that their policy is ‘a proportionate means of achieving a legitimate aim’, s13(2). Consider: employee dismissed on grounds of redundancy to avoid paying out for early retirement – cost of avoiding that impact could be disproportionately high – would be a legitimate aim – but cost alone cannot justify discrimination;

Answer 38

Much of the litigation concerns rules on **retirement ages**. Retirement is no longer listed as permitted exception relating to age in the EA following the **repeal of the default retirement age** (DRA) of 65 with effect from October 2011. Note that after the abolition of the DRA it is still possible for employers to justify direct discrimination in a retirement scenario – or redundancy - if they can show that their policy is ‘a proportionate means of achieving a legitimate aim’, s13(2). Examples from the ECJ in: question to what extent can a retirement age be justified by employer even if state does not allow it on basis it is necessary to share opportunity between ages. Backed up with evidence. CA referred to the dignity to the ages – this dignity argument which is secondary to the other argument has not been approved in Seldon (SC). Lady hale took the view that the main focus should be on genuine reasons and strict test for generational fairness. Dignity was a stereotype for older workers. In this case retirement was 65 at the work. Within context of case a legitimate aim and left to ET to see whether it was proportionate.

Answer 39

The formal definition is a **medical definition of disability** – it is concerned with what an individual cannot do because of a physical or mental impairment: Heavily criticised criticised by those arguing for a wider **social definition of disability** – concerned with removing barriers that hinder an individual’s full and effective participation in society – see now Art 1 of the UN Convention on the Rights of Persons with Disabilities (UNCRPD):

Answer 40

The formal definition is in Art 1 of the UN Convention on the Rights of Persons with disabilituies ## Footnote This definition includes both medical and social elements. The EU ratified the Convention in 2010. The ECJ used this as a basis to bring the EU definition of disability in line with the CRPD . CJEU example of Ms Werge was a full time employee, she suffered whiplash injuries in road traffic accident, uncertain how long she would be affected by the injuries, later she was dismissed. Did she have a disability – substantial and long term disability. CJEU taking account into social definition of equality that dismissing her was discrimination. Appropriate to change the way she was working but someone whose prognosis was uncertain but could have long term effects, fell within ambit. She was capable of doing her job so should have offered work on part time basis.

Answer 41

now Art 1 of the UN Convention on the Rights of Persons with Disabilities (UNCRPD): ‘Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’. CJEU i This definition includes both medical and social elements. The EU ratified the Convention in 2010. The ECJ used this as a basis to bring the EU definition of disability in line with the CRPD in:

Answer 42

Type 2 diabetes is a ‘progressive condition’:

Answer 43

‘long-term’ at least 12 months, ## Footnote calculation of the twelve months can be applied retrospectively if not previously diagnosed, idea of 12 months as a reference point in s6. **Explains what 12 months mean – it is retrospective** if not diagnosed. Flexibility in how interpreted.

Answer 44

‘mental impairment’ ## Footnote 190 tribunal should rely on medical opinion on what is a mental impairment, functional test on how person is affected.

Answer 45

**‘normal day-to-day activities’**: interpreted broadly police officer suffered from ME and had mobility problems effecting them at certain hours of the day, specifically the night shift. Nature of ME was that they could do job normally during the day but when working night shift, the condition had an effect on him. Tribunal held: he was disability, question: was he carrying out normal day to day activities. Found on appeal: man people work nightshifts, so working nightshift is a normal day to day activity and his ME had an effect on his day to day activity. **Nightshift can be a day to day activity.**

Answer 46

**‘normal day-to-day activities’**: interpreted broadly concerns the adverse effect of the impairment on the person’s *ability* to carry out normal day-to-day activities. The mere fact that a person can carry out such activities does not mean that his or her ability to carry them out has not been impaired. A**dverse effect is substantial if** the actual or deduced effect on the applicant’s abilities to carry out normal and day-to-day activities is clearly **more than trivial**. Once identified: 1) person has impermeant taking into account mental and social impairment, 2) look to see if it effects day to day activities 3) taking into account adverse effect. Adverse EFFECT is substantial if the actual or deduced effect… If person can do job without difficulty, then this would not be regarded as a disability. Medical evidence here is key.

Answer 47

Recent case law on obesity highlights the application of the definition in the CRPD: Considered after UN convention took effect, in this case he was a childminder, under WHO of obesity, he was obese and the council took the view that his obesity affected him in his job and he could not do it and he was dismissed. Held: obesity is not a PC. But could be if it is is a hindrance in the exercise of someone’s professional activities and it fits within the definition. Reason for the disability was not relevant – so could be blames for being obease Depends on circumstances of the cases – e.g. if reduced mobility caused discomfort

Answer 48

Recent case law on obesity highlights the application of the definition in the CRPD: Claimant disabled, were obese but this was coupled with other factors, coupled together this was a disability. Suggests obesity alone, unlikely to be sufficient unless combination of factors in particular to carrying out job I question and even then, question about how discrimination is applied baring in mind reasonable obligation duty.

Answer 49

Note that the employer must know, or be reasonably expected to know, that the employee was disabled at the time of the alleged discriminatory act or acts: even in situation where claimant believed they had a disability, just because employer said they believed they had a disability. This is not the same as the employer KNOWING they had a disability. Police officer dismissed over performance after termination procedures started, the employee told about dyslexia, Held: employer could not have been expected to know. Knowledge of disability will be held to be a factor.

Answer 50

Note that the employer must know, or be reasonably expected to know, that the employee was disabled at the time of the alleged discriminatory act or acts: employer followed medical evidence that wrongly regarded the employee as not disabled. If employer follows medical evidence which they were supplied with and then turns out to be wrong, this could fall in situation that they did not have knowledge, depends if evidence was sufficient certain enough and this depends on case by case.

Answer 51

**Concepts applying only to the protected characteristic of ‘disability’** Not the same as direct discrimination: 1. *no need for a comparator*: – C dismissed for absence due to long-term sickness following an accident at work. Held: the comparison is not like-for-like with a non-disabled employee – rather the correct question is **_whether the employee would have been treated in this way if he had been absent from work for a reason unrelated to disability?_**

Answer 52

**causal connection between unfavourable treatment and disability – dismissal of employee found to be disproportionate. ** Teacher who has systic fibrosis, stressed by workload. He had a disability, he was dismissed for gross misconduct for showing an 18 rated film at lessons, he asserted an error of judgement and arose from stress linked with disability. Question: did s15 apply? Held: you had to apply an **objective test,** left to tribunal to make own assessment if this was a disiincaiton arising from a disability. Grosset found: not to have been unfairly dismissed under employment rights act (Separate legislation because under this, there must be unreasonable to dismiss person for this reason), this is not the same test under s15 EA so tribunal could find unfair dismissal under s15 and was a discriminatory dismissal notwithstanding that it was not an unreasonable dismissal under another act. unfavourable treatment - disabled employee can argue that he/she is being treated unfavourably (not less favourably) because of an absence from work, or because he/she is slow at her/his job etc. As this is not direct discrimination the employer would be able to show objective justification – or a proportionate means of achieving a legitimate aim - for its treatment of the employee to defeat the claim. Not the same as less favourable treatment but unfavourable treatment.

Answer 53

s15(2) provides a defence for the employer if he/she has no knowledge of the employee’s or applicant’s disability, or could not reasonably have been expected to have that knowledge. Consistent with: CA – causal connection between the treatment complained of and the applicant’s disability is sufficient – an objective test – the employer should have known

Answer 54

Onus on employer to show that the duty to make reasonable adjustments has been satisfied – an objective test, the ET must decide if all reasonable adjustments were made on the facts of the case (not a reasonable employer test as in unfair dismissal):

Answer 55

The Council’s policy was to require people seeking redeployment on a higher grade to take part in competitive interviews. the substantial disadvantage she faces is being dismissed for not being able to do her job. Her employer is under a duty to take reasonable steps to overcome that disadvantage. The House of Lords noted that one of the reasonable steps listed in the DDA is transfering the person to fill an existing vacancy. Inability to do the present job, therefore, cannot mean that there is no duty at all and this is clearly reflected in the Code of Practice;The House of Lords also noted that the DDA refers to transferring to ‘an existing vacancy”. It does not qualify this with “at the same or a lower grade.” Transfers can be upwards as well sideways or downwards and “transferring her ‘to fill’ an existing vacancy is clearly more than merely allowing her to apply, shortlisting or considering her for an existing vacancy. **Held:** This important decision provides much needed clarity on how the reasonable adjustment of transferring a disabled person to a suitable alternative vacancy fits, not only with an organisations own policies and procedures, but with other legislation too. Before going down the redeployment route employers should assess whether reasonable adjustments would enable the employee to stay in their original job. Where, as in this case, this is impossible the employer should assess the transferable skills that the employee already has and could acquire with training. It is the employer’s duty to then consider whether a vacancy currently exists or is likely to arise in the foreseeable future for a job that the disabled person can do. If such a vacancy exists the disabled employee should simply be transferred into that position and provided with any necessary training.

Answer 56

**Recent example of the Archibald case** long-serving employee moved to a lesser role within the company at lower pay – 10% reduction – was registered disabled following a back injury. Held – pay should not have been cut. The new position was a reasonable adjustment but only if he was paid his previous salary. Employee moved to another job but suffered a pay cut. Held: pay should not have been cut, new position was reasonable adjustment but only if paid the same salary.

Answer 57

1. discriminated (directly or indiretly) or committed an act of harassment 2. because of a protected characteristic (PC) 3. at work

Answer 58

Occurs where an individual is subject to unwanted behaviour than another because of his or her protected characteristic

Answer 59

Occurs where the employer applies a seemingly neutral requiremnt which puts the individual and other people at a disadvantage because of their PC, unless the employer can justify the use of the requirement

Answer 60

Occurs where the individual is subject to unwanted behaviour that violates his or her dignity because of his or her PC

Answer 61

Where the employer selects a person for a job or promotion because people with that person's protected characteristic are under-represented in the workplace. The law permits this in some cases as a means of advancing substantive equality.

Answer 62

In s13(1) EA 2010, the use of the word "WOULD" as in Art 2(2)(a) of the framework directive means that there is no need for the claimant to show that he or she was treated differently to a real person (comparator). It is sufficient for the claimant to show that had he or she not had the characteristic in question, his or her treatment would have been different. This may involve imagining a hypothetical comparator.

Answer 63

**The employer's underlying motive is irrelevant** A police officer was given a reduced role after complaints were made about her conduct. Held: the tribunal should have considered whether her role was changed because of the complaints or because she was a woman (in that a man who had been the subject of similar complaints would have been treated differently). Possible to engage in direct discrimination against someone without subjectively intended to do so.

Answer 64

It does not say "because of the claimant's protected characteristic. Therefore this broadens the law to include discrimination by association and perception.

Answer 65

**Discrimination by association** claimant was discriminated against by her employer because of her caring responsibilities in relation to her son, who had a disability.

Answer 66

**Perception characteristic:** the claimant is discriminated against on the grounds of a PC, regardless whether or not he in fact has that charateristic. This claim can arise even where the employer *knows* that the person does not have the PC. **Facts:** claimant was subjected to homophobic harassment by his work colleagues, who knew that he was heterosexual. The harassment nevertheless took place "because of" sexual orientation

Answer 67

No. There cannot be good reason for this. Age discrimination is the only exception. Only the concept of "occupational requirement" be allowed. This test includes a proportionality requirment and is strict.

Answer 68

yes - where the employer can show that the rule is a proportionate means of achieving a legitimate aim. NOT IN DIRECT DISCRIMINATION THOUGH - the law regards it as illegitimate for the employer to make a decision based on a protected characteristic (unless it is an occupational requirement).

Answer 69

No - it does not apply to pregnancy, though a pregnant woman may be able to present her case as a sex discrimination claim.

Answer 70

1) Identify a Provision, criterion or practise (PCP 2) Show that the PCP has a discriminatory impact 3) Justification

Answer 71

this involves a group comparasion. The claimant is treated as part of a group sharing his or her PC, and the effect of the rule on this group is then compared with the effect of the rule on others who do not share the characteristic.

Answer 72

Predates the age discrimination law. A group of men challenged a rule that employees dismissed when they were 65 or over could not claim unfair dismissal. They argued that the rule indirectly discriminated against men because slightly more men than woman continued work after the age of 65. HL rejected this claim. Majority held that there was no discrimination because men in work over the age of 65 got the same treatment as women in work over the age of 65. Nowadays this case would be easier to argue because it is an example of direct age discrimination.

Answer 73

The EA 2010 places less emphasis on statistics and proportions because it uses the phrase "particular disadvantage" rather than "considerably smaller proportion". Baroness Hale said: The new formulation was to do away with statistical comparasions. Now all that is needed is a particular disadvantage when compared with other people who do not share the characteristic in question.

Answer 74

The Courts may need to modify their approach in response to recent ECtHR decision in the area of religious freedom. The current law: indirect discrimination is about "group" comparasions: the claimant must show that he is a member of a group sharing a protected characteristic, and that members of the group are put at a "particular disadvantage" by the PCP. **Facts:** But in this case, the court considered employers' uniform policies which prohibited employees from wearing crosses or crucifixes at work. The Court found that these policies were indirectly discriminatory. Found: not justified in relation to an airline check in employee (compare Champlin). Held: disproportionate because its aim was insufficent to outweigh the claimant's article 9 rights **The court did not require the employee to show any form of group disadvantage,** it is clear that not all Christians feel obliged to or even wish to wear a cross, nor evidence that employees other than the claimants had been adversely affected at work by the employer's rules. Pitt suggests that the courts will have to use s3 HRA to interpret EA 2010 to bring it in line with this approach.

Answer 75

Case similar to Eweida, but found the policy was justified on health and safety grounds (because the employee was a nurse). ## Footnote The court did not require the employee to show any form of group disadvantage, it is clear that not all Christians feel obliged to or even wish to wear a cross, nor evidence that employees other than the claimants had been adversely affected at work by the employer's rules. Pitt suggests that the courts will have to use s3 HRA to interpret EA 2010 to bring it in line with this approach.

Answer 76

The existing indirect discrimination law is already sufficiently flexible to accomodate the Eweida and Chaplin decisions. **Facts:** the claimant was a single mother who was adversely affected by the employer's decision to move to a flexible shift pattern because she could not find suitable child-care. Women were in a very small minority at her workplace and, of the women, she was the only one who could not cope with the new shifts. CA held: it would be unfair to deny the claim because of the claimant's inability to point to other affected woman since - given the poor gender balance in the workplace - this was probably a result of discrimination in itself.

Answer 77

Proportionality test was developed by CJEU in this case. It is now codified in EA 2010.

Answer 78

To be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and necessary in order to do so - said SC

Answer 79

YES - it is not a free-standing right. All the protected characteristics are covered except marriage and civil partnership, the government having taken the view that there was no need for protection on this ground. A specific provision is made for conduct of a "specific nature" in s26(2).

Answer 80

The Harassment Act 1997 s1(1)

Answer 81

Yes - a person who does not have a disability could not complain of discrimination if an employer preferred a disabled person when hiring. This is not the case with other PC, such as sex discrimination.

Answer 82

This provision is permissive rather than mandatory: employers are allows to use positive action. - The two candidates must be equally qualified, and the employer may not apply a blanket policy. - proportionality requirement required

Answer 83

Yes, this constrasts with the normal position. The Courts are more willing to accept the use of retirement ages than it is to accept age limits relating to younger workers.

Answer 84

Court's treatment of age rules applying to younger workers. Claimant received notice of termination calculated on the basis of 3 years service for her employer. She had worked for the firm for 10 years, but national law provided that service before the age of 25 did not count. The national government argued that the rule protected the job security of older workers and reflexted the greater flexibility of younger workers. The Court disagreed, pointing out that the rule did not apply equally to younger workers because it disadvantaged those who entered the labour market early. The ruling suggests that length of service criteria may now fall to be scrutinised closely for their impact on younger workers

Answer 85

National law allowed firms to conclude successive fixed term contracts with workers over the age of 52. It was argued that this would promote employment among older workers. But the Court rejected this claim, pointing out that the legislation did not apply only to those who were unemployed and seeking to enter the labour market, but also to those who were already in work. The legislation deprived workers in the latter group of job security and was found not to be proportionate

Answer 86

Court rejected an argument that the pension on offer was insuffiient. Here the retirement rules were determined by collective agreement. The court was attracted to this because it allowed for the specific situation of particular types of job to be taken into account. T

Answer 87

Concerned a partner in a firm of solicitors who was forced to retire at the age of 65. This case differed from the retirement age cases considered by the CJEU because it concerned a provision in an individual contract of employment, rather than national policy or collective agreement. This gave rise to particular difficulties of interpretations because Art 6 is aimed at the MS. Baroness Hale noted to arguments used by the CJEU: 1) intergenerational fairness (which might include encouraging older people to retire in order to create opportunities for younger people) 2) Dignity (to avoid the embarrassment of having to force older workers out using arguments about incompetence. The argument about dignity risks stereotyping older workers are incompetent, contrary to the broader aim of equality law to encourage individual assessment rather than stereotyping. Held: firm in question had pursued a legitimate aim but remitted the question of whether the choice of 65 as the retirement age was proportionate in the circumstances.

Answer 88

No - it does not protect non-disabled people in the same way that sex discrimination law protects men and women - so no restriction on an employer favouring disabled people in employment

Answer 89

what the individual ccannot do because of mental or physical impairment

Answer 90

focus' on the interaction between the individual's impairment and socially constructive barriers. It focuses less on what the disabled person cant do and more on society's responisbility to accomodate people with a range of different abilities.

Answer 91

At least 12 months (EA 2010 sch 1, para 2).

Answer 92

CJEU held: that obesity was not a disability in itself but may amount to a disability where it impedes the individual's participation in the workforce, for example, because it reduces his or her mobility.

Answer 93

EAT held: the claimant was not disabled simply because he was obease, but his obesity (coupled with other factors) meant that he had impairments which amounted to disabilities.

Answer 94

1. that its action was proportionate or; 2. it did not know about the disability

Answer 95

1. Where the employer adopts a PCP which puts a disabled person "at a substantial disadvantage" 2. where a physical feature of the employer's premises puts the disabled person "as a substantial disadvantage" 3. where the disabled person would be "at a substantial disadvantage" unless the employer provides an auxiliary aid. The duty is qualified by a "reasonableness test"

Answer 96

**Duty to make reasonable requirements - employer should consider redeploying an employee who becomes disabled and remains able to work but not in his or her original job** Claimant was a road sweeper who was unable to walk because she suffed a complication after undergoing surgery. She applied for numerous office jobs but was unsuccessful because she did not have relevant experience. It was held that it would be a reasonable adjustment for her employer simply to transfer her to an appropriate office job when it fell vacent without forcing her to compete against other candidates.

Answer 97

yes. But it does not protect other types of family status (single, engaged etc). But Art 8 ECHR (right to respect for private and family life) might be possible to challenge the limited nature of art 8 EA 2010 or persuade a domestic court to interpret it broadly using s3 HRA.

Answer 98

claimant was dismissed because her husband was the chief executive of the company employing her, and he had appointed her in breach of an instruction not to employ members of his own family. Her claim failed because the EAT found that she had been dismissed because of these close relationship and not because of the fact they were actually married.

Answer 99

CJEU held: since pregnancy could only affect women, pregnancy discrimination claims should be treated as sex discrimination claims without the needs to find a male comparator.

Answer 100

The Court has extended the protection afforded to pregnancy to cover pregnancy-related illness, during the pregnancy itself and up to the end of maternity leave.

Answer 101

yes. Indirect discrimination claims or harassment claims must be brought as sex discrimination claims. Claims relating to breast feeding are deemed to constitute sex discrimination claims under s13(6) EA 2010

Answer 102

A student was denied admission to a faith school because he did not meet the Chief Rabbi's criteria for being Jewish. The criterion was that the student's mother should be Jewish. The Claimant's mother had converted to Judaism but not according to Orthodox principles. SC held: school's application of the criterion constituted discrimination on grounds of rare. Applying tests in Mandla, Jewish people could be identified as an ethnic group based on a "long shared history" and a "cultural tradition". Although the school's crierion identified a different group of people as Jewish when compared with the Mandla test, that crietion relied to some extent on descent and was thus to be regarded as a criterion of ethnic origin. The school argued that its intention was to identify students as Jewish on religious grounds, but the majority rejected this arguement because of the irrelevence of motive in direct discrimination cases.

Answer 103

**Broad definition of race** it was held that Sikhs were an ethnic group for the purposes of a race discrimiantion claim. Now that religious discrimination is prohibited by law, there is less need to manipulate the distinction between the two.

Answer 104

SC adopted the partitition between the reason for treatment and the employer's subjective motive or purpose and rules that the former could be identified on the basis of an objective evaulation of all the facts. The Supreme Court in *JFS* held that discrimination on grounds of ethnic origin also applies *where a person is treated less favourably because s/he* *lacks certain prescribed ethnic origins*. Orthodox Jewish school’s application of an entry test for Judaism based solely on descent in the matrilineal line was a test based on ethnic origins. Denial of admission to a Jewish boy (M) whose father (E) was Jewish and whose mother was a converted Jew (under the auspices of a non-Orthodox synagogue), was held to be discrimination on the ground of his ethnic origin. The mother had, by conversion, become an ethnic Jew under the *Mandla* test. JFS should have treated M as having a matrilineal link with an ethnic Jew. Less favourable treatment because of lack of ethnic origin. A child was found by the school not to be jewish. Discrimination based on a lack of ethnic origin also would fall in this.

Answer 105

Attempt to define "Religion" spiritual or non-secular belief system, held by a group of adherents which claims to explain mankind's place in the universe per Lord Toulson

Answer 106

**Where individual refuses on grounds of conscience to perform a certain aspect of his or her job.** McFarlane refused to provide counselling to same sex-couples in contravention of equality police. Argued that this was because they did not agree with same sex relationships because of their particular Christian beliefs. McFarlane was aware of the requirement to provide services to same sex couples when he took the job. Court held that: the employer's policy was proportionate because it pursued the important objective of providing a service without discrimiantion on grounds of sexual orientation.

Answer 107

Neil Addison suggested that the dissenting judgement Ms Ladele’s case raised “… a real issue of principle which … deserves to be examined again”, which the decisions in the cases of Ms Chaplin and Mr McFarlane did not. Ladele worked as a registrat and refused to perform a civil partnership certermonies for same-sex couples.Argued that this was because they did not agree with same sex relationships because of their particular Christian beliefs. Unlike McFarlane, Ladele the requirement to serve same sex couples was introduced after Ladele had started working. Court held that: the employer's policy was proportionate because it pursued the important objective of providing a service without discrimiantion on grounds of sexual orientation.

Answer 108

A requiremnt to do a particular job full time is indirectly discriminatory: it is a PCP that puts women at a particular disadvantage to men because women are more likely to have child care responsibilities.

Answer 109

Held: the employer did not need to justify the use of a length of service crierion, but if the claimant could cast doubt on whether it truly reflected the need to gain experioence, the burden would shift to the employer to prove that it was proportionate under the circumstances.

Answer 110

Held: this was not sex discrimination because the relevant comparison was with a man with a same-sex partner (Rather than a woman with a different sex partner) who would also have been denied the travel benefit by the employer.

Answer 111

This well-publicised case is authority for the proposition that an employer can justify restrictions on religious dress in the workplace where the employer is able to demonstrate that it would otherwise interfere with an employee's job performance, subject to ways of accommodating the employee's beliefs having been explored. ## Footnote **Facts:** Azmi was a devout Muslin employed at a school. The school, after a period of time asked her to remove her veil in certain situations as the communication was being stuntted. She refused and was suspended. _Direct discrimination_ **ET held:** case not of direct discrimination because she fialed to show she suffered less favourable treatment than a comparator in similar situations. The comparator here was a person (not of the Muslin religion) who covered her face. They found that any such comparator would also have been suspended since it was a barrier to effective learninh. **EAT held:** ET chose correct comparator. _Indirect discrimination_ **ET -** There was a PCP but it was of general application. The PCP was "apparently neutral". Therefore, the ET then compared whether appellant's belief was at a "particular disadvantage" when compared with others. As persons of another religion would not be required to cover their face. The ET found there was potential for indirect discrimination. But held that it was a proportionate means of achieving a legitimate aim because: 1) the school did not impose the requirement immediately 2) Made allowances for the appellant 3) The school made stringent investigations of alternative means of achieving the aim by not imposing the reqiuirment.

Answer 112

1. **discriminated** (directly or indirectly) and/or committed an act of **harassment** 2. **because of a protected characteristic** 3. **in employment**

Answer 113

CA in NI. Where a christian bakery refused to supply a homosexual activitst a cake bearing a message in support of gay marriage, the bakey had directly discriminated on grounds of sexual orientation. This decision stetches the scope of associataitve discrimination to include a claiamnts general relationship to the LGBT community at large.

Answer 114

two migrant domestic workers (both Nigerian) mistreated by their employers. SC held: discrimination because of immigration status was not discrimination because of, or on grounds of, nationality. Not within the scope of the EA even though the conduct of the employer would have amounted to unlawful discrimination if it had been on racial grounds. Parliament did not choose to include immigration status in the definition or as a PC, so even though immigrations tatus is a function of nationality, it is not the same as nationality. Although immigration status is a function of nationality it is not the same as nationality. The case was either direct discrimination or outside the scope of the EA. Fine line.

Answer 115

It is direct discrimination on ethnic and therefore racial grounds for a school to give preference, in admissions, to children who are Orthodox Jews according to the Chief Rabbi’s criteria of Orthodoxy; for, by those criteria, unless a boy be a convert to Orthodoxy, he is Orthodox only if, at his birth, his mother was Orthodox by conversion or matrilineal descent, and such matrilineality is ethnic in character.

Answer 116

As to Ms Eweida and Ms Chaplin, however, the major distinction was their employers’ grounds for their uniform policies. In BA’s case it was about corporate image – and the company shot through its own goal when it subsequently decided to change the policy to allow employees to wear approved religious symbols, including crosses. The NHS Trust, on the other hand, had founded its policy on principles of health and safety and had followed the Department of Health guidelines on appropriate dress for clinical staff. Moreover, quite apart from the possibility of a necklace-wearer being accidentally throttled by a disturbed patient, there was the broader issue, not mentioned explicitly in the judgment, of infection control and the desire to minimise the risk of MRSA .

Answer 117

Ladele: when she entered into her contract of employment, had she specifically waived her right to manifest her religious beliefs by objecting to taking part in civil partnership ceremonies because that requirement had been introduced by her employer at a later date. On the other hand, her employer’s policy aimed to secure the rights of others which were also protected under the Convention McFarlane: cFarlane had enrolled voluntarily on Relate’s postgraduate training programme in psychosexual counselling, even though he knew full well that because of Relate’s policy of providing its service without discrimination he would not be able to filter out clients on the ground of their sexual orientation. The state authorities had a wide margin of appreciation in deciding where to strike the balance between Mr McFarlane’s right to manifest his religious belief and Relate’s interest in securing the rights of others and, though the loss of his job was a severe sanction with grave consequences, **Balancing exercise:** Overall, the Court noted in regard to Ms Ladele and Mr McFarlane that in previous cases it had been held that differences in treatment based on sexual orientation required particularly serious justification and that same-sex couples were in a relevantly similar situation to opposite-sex couples as regards their need for legal recognition and protection of their relationships. The Court therefore took the view that the domestic authorities had wide discretion when it came to striking a balance between an employer’s right to secure the rights of others and an applicant’s right to manifest his or her religion and that, in the cases of Ms Ladele and Mr McFarlane the proper balance had been struck.