Harassment Flashcards
- lesbian in school. School didn’t protect. Court: not discrimination on grounds of sex, gay man would be treated as badly. (no longer good law, bc sexual orientation protected)
Pearce v Governing Body of Mayfield Secondary School [2000] ICR 920
- hostile environment, displaying porn in workplace. Man could find it just as offended =. Not discrimination. -> now s26 Equality Act (to correct law)
Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440
is a single insult not enough for direct discrimination
De Souza v Automobile Association [1986] IRLR 103
- Single insult not enough for direct discrimination
Insitu Cleaning Co Ltd v Heads [1995] IRLR 4
- One really offensive remark, could be DD. But grievance policy = not unfair dismissal.
COA: Shouldn’t look at CL of Vicarious Liability = ‘course of employment’ in race relations act = ordinary meaning.
Jones v Tower Boot Co Ltd [1997] IRLR 168
Sexual comments from manager, EAT: course of conduct over time = could be liable for DD + Take into acc HER view on situation. (s26 Equality Act)
Driskel v Peninsula Services Ltd and others [2000] IRLR 151
Sexual Harassment as Direct Discrimination (problems)
Porcelli v Strathclyde RC – targeted sex talk to women to police norms. Could say treat equally disliked employee.
‘a particular kind of weapon, based upon the sex of the victim, which…would not have been used against an equally disliked man’ – reduce significance of comparator.
Totality of conduct, evaluate objective taking into acc subjective view of victim
Liability for race abuse? So extreme, not course. BUT COA: in normal meaning. (purposive manner bc of statute)
Sexual Harassment as Direct Discrimination (main case)
Pearce v Governing Body of Mayfield School [2003] UKHL 34
Distinction between sexual orientation and sex as protected characteristics (cannot use backdoor)
The relevant comparator – a gay man in the lesbian woman’s discrimination claim – would have been treated equally badly.
Overruled the EAT in Burton v Rhule De Vere Hotels Ltd [1997] ICR 1 where liability was attributed to the employer where it had been in a position to control a third party perpetrator of harassment (offensive racist jokes by a notorious ‘comedian’ addressed to waiting staff). -> result: put end to 3P liability for discrimination claims.
EXPOSED LIMITS OF DIRECT DISCRIMINATION
When is conduct ‘unwanted’?
Munchkins Restaurant Ltd v Karmazyn EAT
tribunal sensitive to the economic pressures faced by migrant workers; acquiescence in a situation is not the same as wanting it
HM Land Registry v Grant (Equality and Human Rights Commission intervening) 2011 I
[where the claimant had shared information about his private life in the public domain, such as sexual orientation, any grievance about its wider dissemination was unreasonable; compare with Article 8 cases in dismissal].
THIS RELATES TO DISMISSAL BC OF SOCIAL MEDIA!!!
When is it ‘reasonable’ for conduct to have the prohibited effect?
Richmond Pharmacology v Dhaliwal [2009]
[Whether an effect was reasonable was a matter for the factual assessment of the tribunal, having regard to all the relevant circumstances, including the context of the conduct in question; Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended; One-off acts could violate dignity but not create a degrading environment]
How is compensation for injury to feelings calculated?
"determining compensation for injury to feelings in discrimination cases (2017) VENTO GUIDANCE (Vento v Chief Constable of Yorkshire) 3 Bands."(average £8k, highest 31k)
Banter culture
“Evans v Xactly Corporation (2018) : (this was fat case) The case has important implications for sexual harassment cases that concern environments in which a ‘bantering culture’ is well-established and which subsequent claimants join in with. Here the courts accepted that the banter could be discriminatory, but on this occasion they were not unlawful because no genuine offence had been taken by the claimant at the time.
“
Can you fire a pregnant woman?
“Porras Giuado v Bankia SA (2018)
ECJ said that collective redundancy situations do amount to ‘exceptional circumstances’. No special treatment is, therefore, required. In this case an employer had made the claimant redundant after her being selected using a fair system which had scored her contribution/performance in her role relatively poorly. The fact of her pregnancy was irrelevant.
But also separate UK law still requires that women on maternity leave should be given the opportunity to be redeployed to other roles when their jobs are redundant, and that they should not be required to go through a competitive interview process in these situations. “
reasonable objective test trumps all for harassment
Pembertonv Inwood
“If you belong to an institution with known, and lawful, rules, it implies no violation of dignity, and is not cause for reasonable offence, that those rules should be applied to you, however wrong you may believe them to be. Not all opposition of interests is hostile or offensive”
Re: same sex views in a church”
“Harassment: reasonable for C to view as harassment?
Direct Discrimination: Disability VS impact on abilities (not direct, but could be indirect)”
“Ahmed vs THE CARDINAL HUME ACADEMIES (handwriting case)
- Handwriting is just adverse effect, not disability. (Narrow test)
- Harassment: reasonable for C to view as harassment?
Direct Discrimination: Disability VS impact on abilities (not direct, but could be indirect)”
re directors: can put directors duties (implied duty to best co interest)
“DJ Houton Catching Services (agricultural)
- re directors: can put directors duties (implied duty to best co interest)
- Personal liability :
○ director will not be personally liable for inducing a breach of contract by their company if they act bona fide within the scope of their authority.
focus is on the director’s conduct and intention in relation to his or her duties towards the company - not towards a third party.”
