W7 and 8 Dicrimination Flashcards
(88 cards)
English v Thomas Sanderson Blinds 2008
Facts: Claimant was not gay (and perpetrators knew that), but nonetheless subjected to homophobic banter. Still succeeded in his harassment claim based on PC of sexual orientation. His “imagined” sexual orientation was the basis of the harassment. Also acknowledged public policy reasons why there should not be a difference: sexual orientation is not either/or, and people are entitled to keep it to themselves and still be protected. Should not have to declare your sexual orientation to receive protection from harassment.
Significance: No requirement for individual to have PC to be protected by s26 harassment.
Richmond Pharmacology v Dhaliwal 2009
Facts: Racial harassment claim. While working her notice, employer remarked that their paths would likely cross unless C was “married off in India”. Held it passed the test for racial harassment: it was inherently racial so “mental processes” did not need to be examined under third part of test. Was held to be close to the borderline, as not every racially-slanted adverse comment was a violation of dignity and it’s important not to encourage a culture of hypersensitivity.
Significance: Set out 3 elements of harassment: 1) Respondent engaged in unwanted conduct? 2) Conduct had the purpose or effect of violating individual’s dignity or creating an intimidating/hostile/degrading/humiliating or offensive environment? 3) Was unwanted conduct related to (not necessarily a causal relationship) a relevant PC?
Insitu Cleaning v Heads 1995
Facts: An employee, who was the director’s son, said to claimant “Hiya big tits”. C found the remark distressing, asked the employers to informally discuss it with the perpetrator. The perpetrator denied making the remark, so employer told C she would have to invoke formal disciplinary procedures. She refused, resigned, and claimed unfair constructive dismissal and sex discrimination. T found in C’s favour on discrimination but not constructive dismissal.
Significance: Unwanted conduct = unwelcome/uninvited, so can’t “test the waters”. A single incident can be sexual harassment, depending on facts and degree.
Reed v Stedman 1999
Facts: C resigned from job as a secretary due to sexual harassment from her manager. T found the manager was aware his behaviour was unacceptable to C and, while the individual incidents were minor (attempted to look up her skirt then laughed when she left the room, made multiple sexual remarks, passed around a cartoon about affairs at work), they cumulatively amounted to harassment. C did not make a formal complaint but employer still should have investigated as other colleagues were aware and it was having an impact on her health. Was decided it was constructive dismissal, as both the manager’s behaviour and the employer’s failure to investigate breached trust and confidence.
Significance: Unwanted conduct can be a series of minor events and still amount to harassment.
Kirk v Citibank 2020
Facts: Redundancy, C’s appeal was refused. A comment had been made re: his performance that he was “old and set in his ways”. He brought direct and indirect discrimination, age discrimination harassment, and age discrimination victimisation claims, and a claim for UFD. Tribunal found that C’s complaints of age discrimination had been treated less seriously than sex or race discrimination, the employer’s witnesses had been incredulous during proceedings, and his appeal had been conducted unfairly compared to how it would have been conducted for a younger person alleging age discrimination. Comment amounted to both direct discrimination and harassment, and led to his dismissal, so UFD. Even though it was a one-off incident, it injured his dignity and was sufficient for harassment claim.
Significance: One-off can be harassment if succiently serious, question of fact/degree.
Munchkins Restaurant v Karmazyn 2009
Facts: Waitresses were subjected to sexual comments, shown sexually explicit material, and made to wear short skirts. Employer claimed the conduct was not unwelcome, otherwise why would they work there for years before resigning. Tribunal found there had been an assistant manager (female) who acted as a buffer between the manager and the waitresses, and the constructive dismissals occurred within 3 months of her leaving. Claimants did not explicitly reject conduct due to their precarious immigration status, financial constraints, parental pressure, etc. They engaged in some of the sexual talk because the manager was hot-tempered and the best way to “manage” him was to redirect the conversation.
Significance: No requirement to explicitly reject conduct for it to be “unwanted”.
Greasley-Adams v Royal Mail 2023
Facts: Claimant had Asperger’s, employed as a driver. Colleagues submitted bullying and harassment claims against him, which were upheld. C submitted his own grievance alleging the investigation failed to recognise he had been subjected to bullying and harassment re: negative comments about his disability, which he only became aware of during the investigation. Claimant was unaware of conduct but argued it still affected their dignity i.e. how they were perceived by others. Court refuted: harassment is a subjective test from POV of claimant, can’t affect dignity without knowledge.
Significance: Claimant must be aware of conduct/its effect to claim harassment.
Carozzi v University of Hertfordshire 2024
Facts: Derogatory comments about claimant’s Brazilian accent. ET held: comments not “because of” race but because accent hard to understand. EAT held: no requirement for mental element (i.e. intention to harass) - treatment may be “related to” PC and harassment occur where harasser not motivated by PC. Gave example: person unknowingly uses word with connotation offensive to person with PC. That unaware of connotation not prevent tribunal from deciding word related to PC.
Significance: Perpetrator does not need to be aware of connection to relevant PC. Essentially, ignorance of connotations not a defence. Harassment test of “related to” a PC is different/broader than “because of” PC test for DD.
British Bung v Finn 2023
Facts: Electrician, altercation with a co-worker where the co-working verbally abused him, swore at him, called him a “bald cunt”, and threatened C with physical violence. Argued not sex-related since men or women can suffer from it. Court said affects more men than women, sufficient to be sex-related.
Significance: Harassment based on personal attributes associated with a particular sex can be covered under 26(1).
Moonsar v Fiveways Express 2004
Facts: Male employees downloading porn at work. Claimant didn’t see it but knew it was happening - sufficient to bring a claim. Didn’t matter that she didn’t raise a complaint at work. Behaviour had the potential effect of causing affront to a female employee, and was degrading/offensive.
Significance: Conduct does not need to be directed at claimant. Don’t need to raise a contemporaneous complaint to show unwanted conduct.
CC Greater Manchester Police v Bailey 2017
Facts: Race discrimination and victimisation. Black officer, had successful proceedings several years ago. As part of settlement, he had been seconded to another unit on a fixed 2 year term. Stayed with the unit for 3 years, then contract ended, which also ended his company car and travel expense benefit. He complained, but his complaint was rejected, and no investigation into his racial discrimination claims was opened. Brought a claim for racial discrimination and victimisation regarding secondment ending and the rejection of his complaint. CoA said no on the secondment ending: succeeds on but for test (as otherwise the secondment would not have existed), but too spurious a link. The secondment was always going to end. However, there was victimisation and discrimination in the rejection of his complaint, as the decision-maker was influenced consciously or sub-consciously by the embarrasment to the force of having to investigate a further race complaint by an officer who had already made such a complaint. In support of this submission, evidence was brought demonstrating wider discriminatory attitudes/conduct in the institution. While this evidence is permissable to show that certain conduct is more likely on balance, it must be used with care and specificity as to its application. No doctrine of transferred malice in discrimination. The tribunal considered the evidence improperly, so this claim was remitted.
Significance: But for test too wide for Victimisation. No doctrine of transferred malice but evidence can be brought about institutional discrimination to support specific issues - treat with care.
Martin v Devonshires Solicitors 2010
Facts: Legal secretary, launched grievances for victimisation due to a claim of sex discrimination against former employer, and claimed two partners harassed her by calling her a prostitute and saying she was after their money. Investigation concluded the allegations were false, but C believed they were true and medical evidence showed she suffered from paranoid delusions. Claimant refused to acknowledge she had mental health issues, kept raising claims, was ultimately dismissed for conduct. She brought a claim for victimisation, but Tribunal found she had not been dismissed for making complaints but rather for making repeated serious false allegations and refusal to accept they were false (and general disruptive behaviour).
Significance: True reason for treatment was separable from protected act, so no victimisation. Act doesn’t grant claimant absolute immunity in respect of anything said or done in the context of a protected complaint.
Woodhouse v WNW Homes 2012
Facts: Over four years, C raised various grievances and brought ET claims alleging race discrimination. After his 10th grievance, his employment was terminated due to loss of trust and confidence. Brought a victimisation claim. ET found his first two grievances were well-founded, but subsequent allegations were ill-founded, and dismissed his claim. EAT disagreed: even if the claims were ill-founded, no evidence suggested they had been made in “bad faith” per s27(3). Tribunal had failed to identify any genuine separable features for reasons of dismissal being separate from past/future protected acts. Found he had been dismissed to avoid further grievances, which falls into victimisation.
Significance: Only in exceptional cases will the reason for dismissal be separated from protected act and still allow a finding for victimisation
Warburton v CC Northamptonshire Police 2022
Facts: Claimant’s job application was unsuccessful because vetting process was put on hold pending outcome of discrimination claim against current employer. ET found failing to progress job was not a detriment; EAT held that a detriment should be interpreted widely and not wholly objectively - enough that reasonable worker might take view conduct was detrimental even if Tribunal would not (Shamoon followed, bringing into scope of victimisation).
Significance: Test for detriment in victimisation is the same as for direct discrimination. Clarified causation test: whether the protected characteristic/protected act “had a significant influence on the outcome”.
Jones v Tower Boot 1997
Facts: C had been subjected to racial discrimination/harassment (burning his arm with a hot screwdriver, throwing metal bolts at his head, calling him racial slurs). ET felt compelled to say employer not liable because of narrow definition of “course of employment”. Acts included physical violence, which were not authorised by employer or an improper method of carrying out an authorised act (per tort principles). Now interpreted more broadly to mean “at work”.
Significance: “In the course of employment” is interpreted broadly and distinct from tortious principles of vicarious liability. Question of fact in the circumstances of each case to determine if the act was done in the course of employment.
Mohamud v WM Morrison Supermarkets 2016
Facts: Employer of petrol kiosk attendant who assaulted a customer was vicariously liable.
Significance: NOTE: Not employment discrimination case, normal tort case. Jones v Tower Boot had already distinguished the tests for vicarious liability are not the same in these two areas of law! Two questions to consider re: “in the course of employment”: 1) What is the nature of the job? What functions or fields of activities have been entrusted by employer to employee? This must be addressed broadly. 2) Was there sufficient connection between the position in which employee was employed and the wrongful conduct so as to make it just and reasonable for there to be vicarious liability?
Chief Constable of Lincolnshire v Stubbs 1998
Facts: Female police officer complaining that a fellow officer sexually harassed her during social events that were connected with work (after work pub, and an organised leaving party). EAT found that work-based social gatherings are an extended version of the workplace, so fell within the course of employment (on these particular facts).
Significance: Employer may be held vicariously liable for the acts of its employees at work organised events/social gatherings outside of work hours, but not chance meetings. Question of fact for Tribunal, per Jones v Tower Boot.
Sidhu v Aerospace 2001
Facts: Day’s outing to theme park organised by employer. Claimant was racially attacked by a colleague. Raised a racial discrimination claim. Majority of attendess were friends/family of employees rather than employees themselves, it was a public theme park, on a day off/weekend. Tribunal was entitled to find it not to be in course of employment, as it is a question of fact on a case-by-case basis. [In my opinion, this is inconsistent with the fact that Tribunal said it was sufficiently connected with employment for the employer to discipline the employees involved].
Significance: In the course of employment re: vicarious liability is fact-dependent.
Fox v Ocean City Recruitment Ltd
Facts: Claimant was subject to unwanted sexual comments by a manager. Manager was suspended pending investigation, but the investigation found insufficient evidence, so was dismissed. During workforce reduction, claimant was selected for redundancy while manager was re-instated. Redundancy was found to be closely connected with the harassment complaint, so was victimisation. Employer tried to use all reasonable steps defence to avoid vicarious liability, based on their conduct of the investigation. However, EAT clarified it obligation in that defence refers to preventative steps before the unlawful act took place, not properly handling the grievance.
Significance: All reasonable steps defence - not relating to the complaint at hand but rather preventative steps.
Canniffe v East Riding Yorkshire Council
Facts: C brought complaints of sex discrimination against former employer for actions of another employee. In considering vicarious liability, Tribunal asked itself if there were any steps the employer could have taken to prevent the harassment that would have made a difference. EAT remitted, as that is the wrong test. Correct test: what steps were taken? Were there any other reasonably practicable steps that should have been taken?
Significance: All reasonable steps = no further steps they could reasonably have been expected to take
Allay UK v Gehlen
Facts: Vicarious liability for racial harassment. Two managers and another employee had been aware of the racial harassment and failed to report to HR. Employer argued it should not be vicariously liable, as had an equal opportunity policy, anti-harassment/bullying procedures, and employees in question had undergone equality and diversity and bullying/harassment training. Defence was not available to the employer, as the training had become stale and needed to be refreshed, so employer had not taken “all reasonable steps”.
Significance: All reasonable steps = doesn’t matter if untaken step would not have prevented the harassment. Also training must be appropriate and up-to-date.
Majrowski Guy & St Thomas’ NHS Trust 2006
Facts: Employer found to be in breach of implied contractual duty to take reasonable care for safety of employee at work. Could be held vicariously liable by operation of Harassment Act 1997, if conduct occurred on at least two occasions and was very serious.
Significance: Employers can be vicariously liable in damages under Protection from Harassment Act 1997 if Lister v Hesley Hall “course of employment” test is satisfied.
Veakins v Kier Islington 2009
Facts: C was harassed at work by supervisor, held her employer vicariously liable.
Significance: To constitute harassment under Protection from Harassment Act 1997, conduct must be “oppressive and unacceptable”, of an order “which would sustain criminal liability”.
Power v Panasonic UK Ltd 2003
Facts: C was dismissed while off work for depression and while drinking heavily. Tribunal ruled that alcoholism is not an impairment under the legislation. EAT held person whose depression was caused by alcohol addiction was disabled, as the depression qualified as an impairment under the EqA. Does not matter what causes a disability, just that it is one.
Significance: Impairment, even if caused by the excluded conditions, can be a disability.
