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DISCRIMINATION: AN OVERVIEW Catherine Rayner Caroline Lody 7BR

Explore the characteristics of direct and indirect discrimination, including religion, in the workplace and understand the legal implications, defenses, and responsibilities of employers. Learn through real-life examples and court cases about protecting individuals from unfair treatment based on protected characteristics.

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DISCRIMINATION: AN OVERVIEW Catherine Rayner Caroline Lody 7BR

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  1. DISCRIMINATION: AN OVERVIEW Catherine Rayner Caroline Lody 7BR

  2. CHARACTERISTICS • Race • Colour (e.g. Black) • Nationality (e.g. British) • Ethnic origins (e.g. Asian) • National origins (e.g. Irish) • Non-group (e.g. ‘non-British’) • Sex • Gender reassignment (pre, undergoing or post) • Marriage and Civil Partnerships • Sexual Orientation • Religion • Age • Disability • Pregnancy and Maternity

  3. CHARACTERISTICS - RELIGION • Religion – wide definition includes: • any religious or philosophical belief (e.g.Darwinism or man-made climate change) • a lack of religion. • Defining factors include: • Collective worship • Clear belief system • Profound belief affecting way of life or view of the world • Limitations on belief • Genuinely held • Not an opinion or viewpoint • Weighty and substantial aspect of human life and behaviour • Level of cogency, seriousness, cohesion and importance • Worthy of respect in a democratic society • Not incompatible with human dignity • Not in conflict with the fundamental rights of others

  4. CONTEXTS • Arrangements: • recruitment process • terms of employment • Refusal to confer benefit • ‘benefit’ = any advantage in the workplace e.g. promotion, transfer, training, facilities or services • Any Other Detriment – safety net • physical or economic consequence unnecessary • employee may be subject to a detriment she is unaware of

  5. DIRECT DISCRIMINATION • Less favourable treatment – low bar • treatment must be such that complainant can reasonably complain about it • Comparators – must be like for like, save that they are not a member of the protected class • Actual (real life) • Hypothetical

  6. INDIRECT DISCRIMINATION • Provision, criterion or practice (PCP) • indirect discrimination occurs when an employer applies a PCP which is discriminatory to persons who share a protected characteristic. • PCP must be applied equally to all • Defence: PCP is a proportionate means of achieving a legitimate aim • Arrangements • Justification • Burden of proof on employer • Objective test • PCP must be appropriate and necessary • No indirect discrimination for perceived membership

  7. Indirect Discrimination and testing In Essop v Home Office ( UK Border Agency) the claimants • Shared a the characteristic of race ; • All took the same qualifying test for promotion as the whole group • Statistically black entrants did less well than white entrants – this was persistent over time suggesting more than personal qualities being the cause www.7br.co.uk - Email : crayner@7br.co.uk - tel clerks: 020 7242 3555

  8. Indirect Discrimination and testing • On analysis no obvious cause or explanation for the differing results • Question for the Courts was, in the absence of an explanation, but where there is an adverse impact on a group sharing the characteristic of race, is there unlawful discrimination? • Yes say the SC. www.7br.co.uk - Email : crayner@7br.co.uk - tel clerks: 020 7242 3555

  9. Indirect Discrimination and testing • For indirect discrimination to exist there need only be adverse impact on a group who share a protected characteristic resulting from the application of a PCP. • There is no need for the claimant to also demonstrate a causal link of race between the PCP and the outcome. www.7br.co.uk - Email : crayner@7br.co.uk - tel clerks: 020 7242 3555

  10. Indirect Discrimination and testing • The purpose of indirect discrimination protection is to prevent disparity of outcomes • The causes of discrimination are not always evident so the protection exists even where the cause is unknown, provided that there is a disparity of outcome www.7br.co.uk - Email : crayner@7br.co.uk - tel clerks: 020 7242 3555

  11. Indirect Discrimination and testing • The provisions allowing justification of indirect discrimination ensure that the discriminatory effect can be weighed against the importance or necessity of the particular measure www.7br.co.uk - Email : crayner@7br.co.uk - tel clerks: 020 7242 3555

  12. Naeem v Secretary of State for Justice • The claimant is a Muslim prison Chaplin • The pay scale in prisons rewards long service • The pay of Muslim prison Chaplins was, on average, significantly lower than that of Christian Chaplins www.7br.co.uk - Email : crayner@7br.co.uk - tel clerks: 020 7242 3555

  13. Naeem • The prison service argued that this was because the Muslim Chaplins had not been recruited to the service until more recently, in response to particular need; • Therefore there was no indirect discrimination – the cause was not the faith of the Chaplin but the length of service www.7br.co.uk - Email : crayner@7br.co.uk - tel clerks: 020 7242 3555

  14. Naeem • Again the SC find that this is incorrect • Indirect discrimination is concerned with outcomes not causes • It is enough that a PCP has an adverse impact on a group whose members share the characteristic • Here the use of long service as the mechanism for pay progression had an adverse impact and would only be lawful if objectively justified www.7br.co.uk - Email : crayner@7br.co.uk - tel clerks: 020 7242 3555

  15. Government Legal Service v Brookes • Claimant is trainee lawyer with Asbergers • Required to take an online psychometric multiple choice test which she failed by 2 marks • ET found that the requirement that she answer the situational judgment test questions as multiple choice rather than in short narrative form was indirect discrimination www.7br.co.uk - Email : crayner@7br.co.uk - tel clerks: 020 7242 3555

  16. Government Legal Service v Brookes • The ET found that she was placed at a disadvantage because she lacked social imagination; • This was a disadvantage which would be shared by others with the same disability; • The requirement for the test was considered by the ET not to have been justified by the respondent www.7br.co.uk - Email : crayner@7br.co.uk - tel clerks: 020 7242 3555

  17. Implications and lessons from Essop; Naeem and Brookes • Methods of testing applicants for professional roles and career advancement may discriminate if they do have an adverse impact on a group, or if they would have that impact; • Profiling of the protected characteristics of applicants at all stages will demonstrate areas of potential challenge; www.7br.co.uk - Email : crayner@7br.co.uk - tel clerks: 020 7242 3555

  18. Implications and lessons from Essop; Naeem and Brookes • Professional regulation and PSED require diversity monitoring and it is of course best practice; • Monitoring also requires interrogation of outcomes and identification of potential difficulties – if a disparity is longstanding and impacting on the profile of the workforce it will be far harder to justify www.7br.co.uk - Email : crayner@7br.co.uk - tel clerks: 020 7242 3555

  19. Implications and lessons from Essop; Naeem and Brookes • An organisation that does not address the issue will find justifying a discriminatory process even harder; • Respondents who do not disclose monitoring data will also face questions about why no disclosure www.7br.co.uk - Email : crayner@7br.co.uk - tel clerks: 020 7242 3555

  20. VICTIMISATION • It is unlawful to subject a person to a detriment because she does a protected act or it is believed she has, or may do a protected act. • Protected Act • Bringing proceedings under the Act • Giving evidence or information in connection with proceedings under the Act • Doing any other thing in connection with the Act • Making an allegation that someone has contravened the Act • No Comparator needed • Causation – the victim’s treatment and the doing of a protected act must be connected.

  21. HARASSMENT • Four types identified by Act: i. Related to a protected characteristic • Perception • Discriminatory grounds • Unwanted conduct • Purpose or effect • Hypersensitivity • No comparator ii. Sexual Harassment iii. Victimisation for rejecting or submitting to harassment iv. Third party harassment • Associative harassment

  22. CAUSATION • Unconscious – subjective reason for discrimination is immaterial to liability – there does not need to be an intention to discriminate. • Significant Influence • Protected characteristic need not be only reason for less favourable treatment • ‘But for’ test useful tool • Perception - ‘because of’ replaces ‘on the grounds of’, thereby encompassing discrimination by perception (‘you’re gay’ to a heterosexual man). • Associative – ‘because of’ also encompasses discrimination by association (resignation due to instruction not to serve black customers).

  23. Proving Discrimination • Balance of Probabilities • Prima Facie Case • Inferences • Something more than different treatment • The claimants burden – the respondents explanation

  24. Pregnancy – special regime • Protection during pregnancy • Protection while on maternity leave • Right to return to same job or suitable alternative employment • Protection from dismissal • Overlap with sex discrimination

  25. Eversheds v De Belin [2011] IRLR 449 • Caused a great deal of difficulty for employers seeking to protect pregnant staff • Salutary reminder of claim by male employee in a redundancy • Measures taken must be reasonable and proportionate

  26. Eversheds v de Belin cont’d • Redundancy exercise – employer sought to ensure that pregnant employee not disadvantaged by awarding her full marks in redundancy exercise • The Claimant, a male colleague, made redundant as a result • Underhill P stated that measures taken were excessive and discriminatory

  27. Commissioner of Police v Keohane [2014] • Claimant was a dog handler who handled two narcotics dogs • While pregnant one of her dogs was removed from her - her passive search dog ‘Nunki Pippin’ • On her return from maternity leave NP was not re-allocated to her • Was the detriment suffered ‘because of’ pregnancy? Was test different from previous wording

  28. Ill health and dismissal of a woman for pregnancy related illness • Lyons v DWP Jobcentre Plus UKEAT 0348/13 • Claimant had history of depression • Involved in serious accident just before birth of her child • Immediately after birth post natal depression • End of maternity leave, commencement of annual leave prior to return to work

  29. Lyons v DWP [2014] • Symptoms not abated, dismissed 6 month later -Unfair dismissal • Not discrimination because of pregnancy or maternity • Employer allowed to take into account periods of pregnancy related illness which occur outside of the protected period • Protected period ends at the end of maternity leave

  30. Definition of disability • Definition of disability • Physical or mental impairment • adverse impact on normal day to day activities • Whether substantial • Whether long term

  31. Gallop v Newport City Council [2014] [2016] • The extent to which an employer can rely on OH opinion that an employee is not disabled • Decision is a management decision • Relevant up to date medical evidence showed C had been signed off sick with stress and depression by his GP • Responsible employer has duty to make own judgment • On further appeal knowledge of one department cannot be imputed to decision maker.

  32. Two additional types of discrimination • Discrimination arising from disability • Failure to make reasonable adjustments

  33. TIME LIMITS • Discrimination claim must be brought within 3 months beginning with date act complained of. • Tribunal may allow claim to proceed if it is ‘just and equitable’ in all the circumstances of the case to do so. • Continuous Acts – conduct extending over a period is treated as being done at the end of that period. • Omission – done when the person in question decided upon it.

  34. REMEDIES • Declaration of C’s Rights • Recommendation • Compensation • Injury to feelings • Personal injury (medical evidence required in support) • Aggravated damages • Mitigation of losses

  35. Catherine Rayner Caroline Lody 7BR

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