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DISCRIMINATION: AN OVERVIEW Catherine Rayner Caroline Lody 7BR
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
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
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
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
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
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 : firstname.lastname@example.org - tel clerks: 020 7242 3555
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 : email@example.com - tel clerks: 020 7242 3555
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 : firstname.lastname@example.org - tel clerks: 020 7242 3555
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 : email@example.com - tel clerks: 020 7242 3555
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 : firstname.lastname@example.org - tel clerks: 020 7242 3555
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 : email@example.com - tel clerks: 020 7242 3555
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 : firstname.lastname@example.org - tel clerks: 020 7242 3555
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 : email@example.com - tel clerks: 020 7242 3555
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 : firstname.lastname@example.org - tel clerks: 020 7242 3555
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 : email@example.com - tel clerks: 020 7242 3555
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 : firstname.lastname@example.org - tel clerks: 020 7242 3555
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 : email@example.com - tel clerks: 020 7242 3555
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 : firstname.lastname@example.org - tel clerks: 020 7242 3555
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.
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
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).
Proving Discrimination • Balance of Probabilities • Prima Facie Case • Inferences • Something more than different treatment • The claimants burden – the respondents explanation
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
Eversheds v De Belin  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
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
Commissioner of Police v Keohane  • 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
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
Lyons v DWP  • 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
Definition of disability • Definition of disability • Physical or mental impairment • adverse impact on normal day to day activities • Whether substantial • Whether long term
Gallop v Newport City Council   • 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.
Two additional types of discrimination • Discrimination arising from disability • Failure to make reasonable adjustments
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.
REMEDIES • Declaration of C’s Rights • Recommendation • Compensation • Injury to feelings • Personal injury (medical evidence required in support) • Aggravated damages • Mitigation of losses
Catherine Rayner Caroline Lody 7BR