Equality COPY Flashcards

Question

The Opinion of Advocate General Maduro in the Coleman v Attridge Law case

Answer 1

He uses the term “because of”. Even if she does not possess PC herself she can claim it via association. Nowhere in directive does it say, on the grounds of HER disability, only on the grounds of disability. So if someone is subjected to LFT on account of disability, this is the test, one can be a victim of unlawful discrimination without being disabled oneself. This test was applied when went back to EAT.

Answer 2

Reed v Stedman

Answer 3

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 4

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

Answer 5

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 6

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 7

**Motive is irrelevant. Treats... less favourably [because of a PC]** motive for not selecting a woman of Sudanese origin for promotion to the post of “Sudanese researcher” at AI was benign – would be exposed to increased safety risk when posted to Sudan and might compromise AI’s impartiality. Resigned and claimed race discrimination - “but for” test applied – but for her ethnic origin – ‘race’ (includes nationality) - she would undoubtedly have been promoted. **Motive is irrelevant.** Woman worked and Sudanese who applied for position, which would have been a promotion, she was qualified. But AI took view that their position in country might be jeopardised if they promoted here as they might not be seen as being neutral in conflict. She claimed race discrimination. BUT FOR her nationality – would she have been treated in this way? Held: she would have undoubtedly have been promoted. Comparison: if she was not of the same nationality.

Answer 8

Zafar v Glasgow City Council HOUSE OF LORDS

Answer 9

*Grant* v *South-West Trains* [1998] ECR I-621 ECJ

Answer 10

s23 : Material difference comparator. application of the ‘no material difference’ test ## Footnote age - comparison cannot take account of age-related differences. Employer has a scheme for voluntary redundancy. Scheme was more generous to those who were over the age of 35. Lockwood who was younger would miss out. Could she compare herself to the over 35’s? Held: she could not because there was a material difference between her and older work group: difference was to purpose of permeance: this was to reflect comparative difficulty of loss of employment to older workers. It provided the older workers with a proportionate financial cushion. the no material difference argument was mounted by the DWP who argued that civil servants over 35 were in a materially different position because they were at a different stage of their career. It might be more difficult for them to find another job. This argument may have been accepted at the ET but the EAT judgment is that even if the treatment is discriminatory it is objectively justified age discrimination (only justifiable because age is the PC). The reason is that the older workers may take longer to find alternative work and need a financial cushion ( the amount being proportionate). I think tho is better than the argument that these employees were not comparable. The Court of Appeal first considered whether there had been direct age discrimination and held that there had. The purpose of the comparative exercise was to test whether the claimant had been discriminated against on a prohibited ground, in this case that of her age. The relevant comparator must therefore be materially similar to the claimant in all relevant ways except for the protected characteristic. Her comparator was that of an employee over 35 whose term of service had been identical to hers. He or she would receive at least twice what the claimant received and it followed that she was treated less favourably and was so treated because of her age. However, the Court of Appeal found that the respondents had adopted proportionate means to achieve the legitimate aim to produce a proportionate financial cushion for workers until alternative employment is found when balanced against the disparate treatment of younger workers and the appeal was thus dismissed.

Answer 11

Donelien v Liberata

Answer 12

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 13

– ‘sex appropriate dress code’ can be relevant circumstances . Woman who worked for company required to wear skirts and not trousers, men did not have this. Schmidt was dismissed for refusing to wear a skirt at work. Found: this could not be direct discrimination, based on the relevant circumstances aspect – argument, employer using managerial prerogative was applying a uniform rule to both men and woman, they just applied a different type of uniform rule. Rule itself did not need to be the same as far as the court was concerned, they were being treated alike. Employer was entitled to a large measure of discretion in controlling appearance of staff, especially when in contract with public. Not direct discrimination when like for like treatment. Men were compared vis a vis to woman. In Schmidt men were not allowed to wear t-shirts. It was deemed to be an equivalent rule even though these were completely different items of clothing. Highlights a deference to the managerial prerogative of the employer in dress code cases. I’m not entirely convinced it would be decided in the same way today - it was 1977- but it might. See the governments recent guide on dress codes for a run through of the case law on the lecture handout. Nor was the requirement that women should not wear trousers less favourable treatment on grounds of sex within s 1(1)(a), as there was no comparable restriction which could be applied to the men which could lead to the conclusion that women were being treated less favourably. In any event, there were certain restrictions, albeit different ones, on what the men could wear, and so it could be said that the employers treated men and women alike in that rules governed clothing and appearance in both cases

Answer 14

Occupational requirement:

Answer 15

Shamoon v Chief Constable of the RUC

Answer 16

Does the law treat disability discrimination as symmetrical?

Answer 17

City of York v Grosset [2018] EWCA

Answer 18

**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 19

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 20

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 21

Is age a PC that can justify direc discrimiantion?

Answer 22

Azmi v Kirklees MC

Answer 23

Achbita Bougnaoui cases

Answer 24

Does harassment have to be "related to" a PC?

Answer 25

Eweida v British Airways [2010]

Answer 26

Taiwo and Onu’ SC

Answer 27

The concept of discrimination extends to perceptive discrimination – *where a person is discriminated against because of a protected characteristic regardless of whether he or she in fact has that characteristic*. This can be implied from the term ‘because of a protected characteristic’: – homophobic abuse amounted to unlawful discrimination on grounds of sexual orientation – harassment – it is the objective nature of the [prohibited conduct] rather than the orientation of the victim that is determinative. It was irrelevant whether the perpetrators knew that the claimant was or was not gay – the discrimination was because of sexual orientation. Subject to vile abuse from fellow employees, homophobic abuse which was found unlawful falling within scope of harassment. English was subject to homophobic abuse because he was from BRIGHTON – a stereotype that men from Brighton might be gay. He was subject to this, even though the fellow employees knew that he was not gay. Question: could this because of a PC. Found: it could be, **it is of the objective nature of prohibited conduct rather than the orientation of the victim.** Irrelevant whether perpetrators knew he was gay or not.

Answer 28

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 29

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 30

Claimant relying on equity law must show that the employer has:

Answer 31

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 32

Pendleton v Derbyshire County Council [2016]

Answer 33

In order to bring a successful discrimination claim, the claimant must show that the employer:

Answer 34

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 35

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 36

European Roma Rights Centre v Immigration Officer [2005] 2 WLR 1 HL

Answer 37

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

Answer 38

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 39

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

Answer 40

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 41

Where is direct discrimination ## Footnote **– less favourable treatment because of a protected characteristic**

Answer 42

Medical disability definition

Answer 43

‘treats … less favourably [because of a protected characteristic]’ Stereotyping is direct discrimination: chaperoning of male nurses performing intimate procedures on female patients but not vice versa – benign motive – but stereotyping, therefore, direct sex discrimination. Male nurses responsible to female patients, were required to have a female chaperone, but female nurses were not required to have a chaperone when required to do intimate procedures on intimate procedures. Held: either neither should have it or BOTH should have it. Requiring one sex to have it and not the other was less favourable and it was based on a presumption.

Answer 44

Shamoon v CC of RUC HL

Answer 45

Coleman v Attridge Law

Answer 46

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 47

Rosenbladt

Answer 48

The Opinion of Advocate General Maduro in the Coleman v Attridge Law case

Answer 49

English v Thomas Sanderson Blinds [2009] EWCA

Answer 50

**Eweida v uk:** In the case of Ms Eweida, the refusal by BA between September 2006 and February 2007 to allow her to remain in her post while visibly wearing a cross amounted to a disproportionate interference by BA plc with her right to manifest – and the Court of Appeal had not struck the correct balance in its ruling. “while [BA’s] aim was undoubtedly legitimate, the domestic courts accorded it too much weight. Ms Eweida’s cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image. Important: 1. The cross was discret, not detracting from professional appearance 2. no evidence that wearing other items of religious clothing had a negative impact on BA's brand or imagine **Chaplin\>** In Ms Chaplin’s case, the grounds for the ban were health and safety. Her managers considered there was a risk that a disturbed patient might seize and pull the chain, thereby injuring the patient or Ms Chaplin, or that a swinging cross on a chain might come into contact with an open wound. Moreover, another Christian nurse had been requested to remove a cross and chain, two Sikh nurses had been told they could not wear a kara bangle or kirpan and flowing hijabs were prohibited – again on health and safety grounds. Furthermore, Ms Chaplin had been offered the alternative of wearing a cross as a brooch or under a high-necked top under her tunic but she did not consider that this would be sufficient to comply with her religious convictions (para 98). In the circumstances, the interference had not been disproportionate and Ms Chaplin’s claim was therefore dismissed unanimously. Though the Court accepted that there had been an interference with both women’s right to manifest their religion it took the view that the two cases were distinguishable: 1. Ms Eweida worked for a private company – BA plc – so she could not attribute the interference with her right to manifest directly to the state. 1. BA had previously given permission for male Sikh employees to wear a dark blue or white turban and to display the kara bangle in summer if wearing a short-sleeved shirt and for female Muslim ground staff to wear the hijab in BA-approved colours – without any apparent negative impact on BA’s brand or image. 2. The domestic authorities had therefore failed sufficiently to protect Ms Eweida’s right to manifest her religion, in breach of Article 9. Chaplin 1. In Ms Chaplin’s case, however, the issue of health and safety in a hospital ward was inherently of much greater importance than the reasons adduced by BA in the case of Ms Eweida 2. Moreover, hospital managers were better placed than a court to make decisions about clinical safety

Answer 51

The Appeal cases of Eweida v UK and Chaplin

Answer 52

How do you show a PCP has a discriminatory impact?

Answer 53

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 54

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 55

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 56

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

Answer 57

Achbita v G4S Secure Solutions NV [2017]

Answer 58

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 59

Homer proportionality

Answer 60

CC v Adams

Answer 61

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 62

**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 63

Lord Browne - Wilkinson's test = 1) should first inquire whether less favourable treatment has been afforded to the complainant, 2) and then proceed to investigate the reasons for the less favourable treatment.Zafar shows the determination of the House of Lords to direct the courts and tribunals to inquire into the reasons why a person was subjected to unfavourable treatment. BOB WATT - believes that the "but why" test lord browne wilkinson formulated should be applied. s23 : Material difference comparator. D The selection of the comparator and the relevant ‘circumstances’ present a complex challenge and will also depend on the protected characteristic at issue. Leading case: * race - test is not simply whether the employer has treated the employee less favourably, but whether he has treated him less favourably than he would have treated an *otherwise similarly situated* employee belonging to another racial group. Race discrimination. Test laid down by lords in this case is that it is not simply whether employer has treated employee less favourably but whether he has treated him less favourable to another situated employee, belonging to another racial group. For example, a number of people in a certain department, if someone has been subjected to less favourable treatment because of race or ethnic origin, would someone similar who is in same ethnic group has been treated the same then = comparator. **S23 STATES in making this comparison, there must not be a material difference to comparator in the relevant circumstances.**

Answer 64

Is it lawful to discriminate in favour of people with disabilities?

Answer 65

Associative discrimination Regulation 5(1)(b) of the Employment Equality (Religion or Belief) Regulations 2003 will be breached not only where an employee is harassed on the grounds that he holds certain religious beliefs, but also where he is harassed because someone else holds certain religious beliefs. Reference to “religion or belief” includes a lack of religion or belief. As such, non-believers have the same rights as believers.

Answer 66

Type 2 diabetes is a ‘progressive condition’:

Answer 67

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 68

**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 69

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 70

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 71

Rutherford v Towncircle HL

Answer 72

Case law on dress codes

Answer 73

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 74

Rolls-Royce v Unite the Union [2009] IRLR 576 CA

Answer 75

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 76

*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 77

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 78

Schmidt v Austicks Bookshop

Answer 79

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 80

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

Answer 81

Balamoody v UK Central Council for Nursing CA

Answer 82

**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 83

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 84

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 85

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

Answer 86

Smith v Safeway

Answer 87

Archibald v Fife Council [2004] UKHL **HOUSE OF LORDS**

Answer 88

Chacon Navas

Answer 89

Eweida v UK [2013]

Answer 90

provides a basis for ET to assess the treatment of an actual or hypothetical comparator if there is no real comparator Under EA s23 the basis for comparison is as follows: ‘On a comparison of cases … there must be *no material difference* between the circumstances relating to each case’ (emphasis added)

Answer 91

Amnesty International v Ahmed [2009]

Answer 92

**The OR must be something which is essential for the person to be able to perform the functions of the job.** Joined troubles in NI, back in 1980s woman police officers were not permitted to carry fire arms, this was an occupational requirement that was gender specific on basis they were not trained in carrying firearms. Ms Johnston was unable to carry firearms so her contract was not renewed. The occupational requirement was personal safety – sex could be a genuine determining factor. Held: this could be an occupational requirement (probably won’t be today), but it was not proportionate to dismiss her because she could continue to work as a police officer carrying out other duties rather than being dismissed.

Answer 93

Is pregnancy claims limited to direct discrimination only?

Answer 94

Ladele v LB of Islington [2010] IRLR 211 CA

Answer 95

Difference between Eweida and Chaplin

Answer 96

In certain situations, having a particular characteristic in relevant to doing a particular job. Burden of proof: on employer to show three things (sch 9, part 1, s1(1) EA): 1. It is an **OR** – strict job function test, *Johnston is it required for the job.* 2. Application of the OR is a **proportionate means of achieving a legitimate aim**, *Etam, Bougnaoui* (ECJ) 3. The **person does not meet the OR.** Does the person not have this particular requirement.

Answer 97

Eweida v UK

Answer 98

Definition of harrassment

Answer 99

R (on the application of E) v Governing Body of JFS [2009] UKSC 15

Answer 100

R v JFS SC

Answer 101

In direct discrimination cases, does the employer need to show that he WAS treated differently?

Answer 102

Hawkins v Atex Group [2012] IRLR 807

Answer 103

Seldon v Clarkson Wright and Jakes [2012] UKSC

Answer 104

Carreras [2018] CA

Answer 105

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 106

Saini v All Saints Haque Centre

Answer 107

Brown v Rentokil

Answer 108

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

Answer 109

Bilka-Kaufhaus

Answer 110

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

Answer 111

Mangold v Helm

Answer 112

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

Answer 113

**‘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 114

does s8 EA 2010 protect marriage and civil partnership as a PC

Answer 115

In Lockwood, the CA held that a tribunal treating people over 35 as improper comparators for a 26 years old woman, because younger women can more easily find subsequent employment, completely miconceived the point of the comparison. Lord Rimer, then compared this to a race discrimination case, saying that "the whole purpose of the comparison is as an aid to seeing whether or not the way in which the comparator was or would have been treated in the relevant circumstances"\> It is difficult to reconcile this with the case of *_Palmer_* where the EAT rules that differential treatment between the 49 year old claimant and c-workers between 50 and 55, in administraring a voluntary redundancy scheme, was not discrimination because the latter were inappropriate co,paraotrs. However, in that case, the Finance Act 2004 only permitted people aged 50 or over to participate in the kind of scheme involved in this case/ The legal fact, which did not flow inevitable from age, was deemed to be a relevant circumstance other than age that could distinguish the comparators.

Answer 116

treats or would treat others’

Answer 117

Can direct age discrimination be justified?

Answer 118

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 119

**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 120

Rutherford v Towncircle [2005] ICR 119 HL

Answer 121

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 122

social disability definition

Answer 123

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 124

If you cannot fall within EA 2010 for harassement, where else can you turn to?

Answer 125

Kücükdeveci

Answer 126

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 127

what the individual ccannot do because of mental or physical impairment

Answer 128

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 129

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 130

Does the protection afforded to transgender people under s7 require them to have undergone medical treatment?

Answer 131

Azmi v Kirklees

Answer 132

Where is the definition of disability

Answer 133

**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 134

Archibald v Fife Council [2004] UKHL

Answer 135

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 136

Bilka-Kaufhaus

Answer 137

Patel v Oldham

Answer 138

**‘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 139

**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 140

Ring and Werge

Answer 141

CC v Homer [2012] UKSC

Answer 142

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 143

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 144

London Underground v Edwards [1999]

Answer 145

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 146

s13(1) EA:

Answer 147

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 148

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 149

Bougnaoui v Micropole

Answer 150

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 151

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 152

Does s19 EA 2010 apply to all PC?

Answer 153

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 154

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 155

**Direct discrimination** ‘treats … less favourably [because of a protected characteristic]’ Stereotyping is direct discrimination: – treatment of a person cannot be based on stereotypical beliefs or assumptions – ‘the object of the legislation is to treat each person as an individual and not assumed to be like other members of the group’ – per Baroness Hale. Roma people being stopped by UK immigration and treated more sceptically than non Roma people. Found by HL that treatment of person cannot be based on stereotypical beliefs or assumptions. Object of legislation is to treat each person as an individual and not assumed to be part of a group – Lady Hale.

Answer 156

Morgan v Staffordshire University

Answer 157

Positive discrimination definition

Answer 158

Moyhing v NHS Trust [2006

Answer 159

Smith v Churchill Stairlifts

Answer 160

What does "long term" effect mean? in s6(1) EA 2010

Answer 161

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 162

Cadman v Health and Safety Executive [2006] CJEU

Answer 163

Clark v TDG

Answer 164

- age-related differences arose from Statute – two groups (under and over aged 50) not comparable. Not employer’s fault Ms Palmer had two options available to her. Her comparators had three. They were in materially different circumstances which were not caused by unlawful discrimination on the ground of age, but by lawful discrimination which was required by statute.

Answer 165

*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 166

When does the duty to make reasonable adjustments apply?

Answer 167

London Underground v Edwards

Answer 168

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 169

Mandla v Dowell Lee [1983]

Answer 170

Clark v TDG

Answer 171

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 172

*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 173

Etam v Rowan

Answer 174

Mangold v Helm

Answer 175

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 176

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 177

Rosenbladt

Answer 178

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 179

Proportionality is strictly applied when showing the OR is justified decency argument – women’s clothing shop – staff required to carry out changing room duties – men could perform other duties so could be hired. Woman’s clothing store. Rowan applied for a job for the store, he was refused because he was a man because the job involved changing room duties. Argued for decency and privacy a man should not be in changing room when woman were changing. Tribunal: it could be an occupational requirement but it was not proportionate, shop had sufficient female staff to cover the duty. Therefore, even though it would normally be a normal part of the job, you could not have a blanket ban. **Sex.**

Answer 180

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 181

Definition of indirect discrimination

Answer 182

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 183

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 184

Taylor v Ladbrokes

Answer 185

**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 186

Lockwood v DWP [2013] EWCA

Answer 187

Direct discrimination definition

Answer 188

Places the burden on the employer to show the occupational requirement to, typically, hire a person who has a particular protected characteristic, to justify the reason, and to satisfy a proportionality test.

Answer 189

Walker v Sita Information Networking Computing [2013]

Answer 190

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

Answer 191

**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 192

**Direct discrimination** no need to identify the comparator - key issue is the link between the reason for the less favourable treatment and the ground relied on - ET must ask two questions: 1. Why was the claimant treated in the way in which he or she was? (Motive irrelevant to answering this question). 1. REASON. Motive is irrelevant in answering the question. 2. Was it on the proscribed ground that was the foundation of the application or was it for some other reason? If the former, there will usually be no difficulty in finding less favourable treatment. 1. Grounds = protective characteristic. Lord Nicholls did not expressly cast doubt on the "but for" test in Shamoon,

Answer 193

Johnston v RUC

Answer 194

Walker v Sita Information Networking Computing [2013]

Answer 195

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 196

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 197

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 198

What are the defences of s15 (discrimination arising from a disability)

Answer 199

Kücükdeveci

Answer 200

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 201

**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 202

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 203

**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 204

CC of West Yorkshire Police v Homer [2012] UKSC

Answer 205

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 206

Woodcock v Cumbria Primary Care Trust

Answer 207

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 208

EU legislation uses the term ‘on grounds of’, but the ECJ has given these words a purposive interpretation to encompass *associative discrimination* – where the employer discriminates against a person because of his/her association with a person with a protected characteristic. ground for discrimination alleged by C against her employer was that she was treated less favourably than other workers because she had caring responsibilities for a disabled child. Worked for law firm and had a disabled child, she needed to ask for time off to care for her child, made arrangements to make sure she is available for this. She was subjected to a detriment in terms of how she was treated in course of work. She also suffered harassment. Question: could she claim LFT because of disability even though this was not of her own but of her child’s. Court of Justice held: gave guidance of term “on grounds of”. ECJ: she could claim less favourable treatment on the ground of her child’s disability even though she was not herself disabled if the less favourable treatment related to the ground.

Answer 209

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 210

Seldon UKSC

Answer 211

Can the employer invoke a justification defence in regards to indirect discrimination

Answer 212

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 213

Is the Kücükdeveci compatible with seldon?

Answer 214

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 215

The Harassment Act 1997 s1(1)

Answer 216

Goodwin v Patent Office

Answer 217

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

Answer 218

Does direct discrimination have a justification defence?

Answer 219

Home Office v Holmes

Answer 220

Lee v McArthur CA

Answer 221

Somerset CC v Pike

Answer 222

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 223

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 224

Bullock v Alice Ottley

Answer 225

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 226

Rolls Royce v Unite the Union

Answer 227

What does the EA 2010 use of the phrase "because of a protected characteristic"?

Answer 228

Occupational Requirement burden

Answer 229

Enderby v Frenchay

Answer 230

Moonsar v Fiveways

Answer 231

Kücükdeveci

Answer 232

Hardy v Lax

Answer 233

English v Thomas Sanderson Blinds

Answer 234

**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 235

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 236

*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 237

Comparator for direct discrimination

Answer 238

XC Trains Ltd v CD

Answer 239

Appeal cases of : Ladele and McFarlane

Answer 240

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 241

Essop v Home Office (UK Border Agency) [2017] UKSC

Answer 242

English v Thomas Sanderson Blinds

Answer 243

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 244

Palmer v RBS

Answer 245

no actual comparator? ## Footnote where no actual comparator for a complainant to compare their treatment with, the ET must construct a *hypothetical comparator.* Hypothetical comparator could be constructed. When comparator exists, the tribunal must construct a hypothetical comparator. Shamoon HL took you how to do this – two questions tribunal needs to ask to show link between Reason and PC on the other.

Answer 246

Dekker v VJV Centrum

Answer 247

**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 248

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 249

employer has a large measure of discretion over uniforms, dress codes etc – can have different rules for each sex so long as the treatment is not less favourable Large measure of discretion, as long as treatment is not less favourable. Regarded as not less favourable if rules like for like. If only rules for woman and not for men, finding would be different. Difficult in dress code test to show less favourable treatment, because looking at circumstances and showing that LFT is due to a particular characteristic. If cannot be direct discrimination but indirect, then employer might be able to show indirect discrimination is objectively justified.

Answer 250

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.

Answer 251

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;