Business and Employment Law

Business and Employment Law Lecture 9 Week Beginning 25th March 2019 Introduction to Discrimination

Introduction • This is the first of two lectures on this subject – large area which needs some ‘thinking time’ • All selection is a form of discrimination • Employer offers an interview for job • 6 people arrive/1 chosen • Must be chosen on the basis of suitability for the job – nothing else matters

Role of Legislation • Provides equality of opportunity • Protects the dignity of the worker • Tries to correct disadvantages – offers affirmative or positive action • Helps to reduce barriers to some excluded groups

Equality Act 2010 • Act to harmonise Discrimination Legislation and to introduce new restrictions in the field of employment • Sex Discrimination Act, Race Relations Act, Disability Discrimination Act and Regulations regarding Age, Sexual Orientation and Religion all now brought under this one Act • S39(1) and s39(2) outlaw discrimination in employment

General Principles • No employment qualifying period • Protection begins from the moment an employer decides to advertise a role • No cap on compensation • Onus is on the employer to defend a claim (EqAct s136) • Wide legislation which covers a number of areas outside of employment • For our purposes, we are concerned with discrimination in employment which protects everyone in the working environment (s39)

Protected Characteristics • S4 identifies 9 protected characteristics • Age • Disability • Gender reassignment • Marriage and civil partnership • Pregnancy and maternity • Race • Religion or belief • Sex • Sexual Orientation

Protecting Outside Equality Act • Part time workers protected under Part Time Working (Prevention of Less Favourable Treatment)Regulations 2000 • Fixed Term Workers – Fixed Term Workers (Prevention of Less Favourable Treatment) Regulations 2002

What is discrimination? • The Equality Act 2010 defines it as ‘prohibited conduct’ • What is ‘prohibited’ is very much a matter of interpretation by the individual and ultimately, the tribunal – element of subjectivity – office banter? Jokes? ‘High Jinks’?

Four Types of Discrimination • Direct s13 • Indirect s19 • Harassment s26 • Victimisation s27

S13 Direct Discrimination • Someone is treated less favourably because of their protected characteristic • Eg a woman is not given a job because the employer prefers to employ men • A disabled person is not given a job because the employer thinks they might have too much time off for hospital appointments • Except in relation to age the employer CANNOT justify direct discrimination • S13 also includes discrimination by association, perception, deterred

Association • Discrimination because of Association with someone who shares the characteristic - s13 • Showboat Entertainment Centre Ltd. v. Owen (1984) • Weathersfield Ltd v Sargent (1998).

Perception • Discrimination because someone perceives the other to have a protected characteristic - s13 • Eg • A phones to enquire about a job he has seen advertised in the local paper. A is rejected by the employer because his accent makes him sound ‘foreign’ – employer perceives him to be African/Asian .... • See English v Sanderson Blinds [2009]

Deterred • Deterred discrimination s13 occurs if someone is deterred from applying for a job because the advertisement is worded such that it is implied that persons applying for the role will not be welcome because of a protected characteristic. • Often very subtle • Sometimes based on knowledge/rumours of the employer

Less Favourable Treatment • Usually means some disadvantage/detriment: • Shamoon v Chief Constable of Royal Ulster Constabulary • Minster of Defence v Jeremiah However • Cf Stewart v Cleveland Guest (Engineering) Ltd [1996] • All decided under previous legislation

The motive for the discrimination is irrelevant • The motive of the discrimination is irrelevant – the employer may have had the best of intentions. The correct test is an objective one • Before the 2010 Equality Act LFT was based on the ‘but for’ test (evident in James v Eastleigh Borough Council). The test is still applied now because of/but for areone and the same thing • Moyhing v Barts London NHS Trust • Amnesty International v Ahmed [2009]

Employer cannot justify a direct discrimination but he may be able to defend it – Schedule 9 • Occupational Requirement – essential to nature of the job • Proportionate means of achieving a legitimate aim • Personal characteristics – authenticity in acting • Personal Service – rape victims • See page 69 of lecture notes

Positive Discrimination • Positive discrimination is treating someone more favourably because of a protected characteristic that is under-represented in the work place. • It is usually direct discrimination against others with different characteristics and therefore unlawful – except in the case of disability (able-bodied is not PC). • Positive action is offering training or support to help those with a PC achieve their full potential – this is not unlawful and is often to be encouraged. • Re Badeck (2000) – ECJ held that reserving half of places on training courses and on interview shortlists for women was not unlawful.

S158 and S159 • S158 – Permits positive action to help those who suffer a disadvantage as a result of a protected characteristic overcome that disadvantage. • S159 – Very limited scope for Positive Discrimination where 2 candidates for a job have the same level of qualification and experience. Can employ the candidate with under-represented PC.

S19 Indirect Discrimination • The employer places a provision criterion or practice on the employment which appears neutral as most people can confirm to it however members of one protected group cannot • Eg successful candidate must be able to change shift patterns at short notice – this would disadvantage women as generally they have caring responsibilities in the home. • Could also be policies, rules, procedures etc etc

Indirect discrimination • s19 ….….A applies to B a provision, criterion or practice which is discriminatory in relation to the relevant protected characteristic. • Unlike direct discrimination, indirect can be justified if A can demonstrate that what he is doing is a Proportionate means of achieving a legitimate aim.

Proportionate Means of Achieving a Legitimate Aim • It means the justification must be based on objective, commercial or organisational need and • The effects of the discrimination must not disproportionately outweigh the advantages to the employer.

JUSTIFICATION -BilkaKaufhaus • Objective, Commercial or Organisational needs • Productivity • Efficiency • Cost • Advantages must be more than marginal

Burden of Proof • Provision contained in s136 EqAct 2010 – applies to any proceedings relating to a contravention of the Act. • If the primary facts of the case indicate that some form of discrimination may have taken place:- • Burden of Proof shifts to the employer to establish that discrimination did not take place. • Guidelines set out in Igen Ltd v Wong [2005]

S26 Harassment • Unwanted conduct related to one of the protected characteristics which violates the dignity of the worker. • The harassment may create:- • A hostile environment • Intimidating atmosphere • Demeaning and unacceptable enviornment

S27 Victimisation • This section does not stand alone • A worker is victimised if he is treated less favourably because he/she has brought a claim of discrimination or harassment or has helped someone else to do that either to the attention of the employer or a tribunal

Other Responsibilities • S111 A person must not instruct another to do in relation to a third person, anything which contravenes this legislation • S109 Employers are liable for the acts of their employees – anything done by the employee will be treated as being done by the employer unless he is able to use the ‘reasonable steps’ defence – s109(4)

Business and Employment Law