Ws8 tasks discrimination PDF

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EMPLOYMENT LAW WORKSHOP 8 DISCRIMINATION CLAIMS PREPARATORY TASK 1 – MCQ’s 1. Ben is a professional actor. He has auditioned for the title role in the forthcoming production of Macbeth in the repertory theatre where he works. Ben is unsuccessful even though he is acknowledged to be the best actor in the company. Actors that play key main characters are eligible for bonus payments related to ticket sales. The director tells Ben that he cannot play the part because the character of Macbeth is heterosexual and Ben is gay. Which of the following statements are CORRECT? (i) The refusal to cast Ben in the role of Macbeth may be an unlawful act under s.39 Equality Act 2010. (ii) The refusal to cast Ben in the role will result in a claim of victimisation being brought before the High Court by Ben. (iii) Ben may have a claim under the Equality Act 2010 as the unlawful act is related to the protected characteristic of sexual orientation. (iv) If a claim of direct discrimination is brought against the employer, an argument that there was an occupational requirement for the actor to be heterosexual is unlikely to succeed. A. Statements (i), (ii) and (iv) are correct. B. All the statements are correct. C. Statements (ii) and (iv) are correct. D. Statements (i), (iii) and (iv) are correct. Answer: The correct selection is D as statements (i), (iii) and (iv) are correct. Statement (ii) is wrong. The situation does not give rise to a claim of victimisation as the provisions of s.27 of the Equality Act 2010 are not met (and also any proceedings would be at the Employment Tribunal rather than the High Court). Statement (i) is correct as failure to appoint him to the role would amount to subjecting Ben to a detriment contrary to s.39(2)(d) Equality Act 2010. Statement (iii) is correct as the unlawful act does relate to the protected characteristic of sexual orientation – he is not given the role because he is gay. Statement (iv) is also correct. In response to a claim of direct discrimination – that Ben was treated less favourably because of his sexual orientation – the employer will want to argue there was an occupational requirement for the actor to be heterosexual for authenticity. This is unlikely to succeed however – a gay actor can play the part of a heterosexual so it is not an occupational requirement in the same way, for example, that it might be if the employer wanted a black actor to play the part of Martin Luther King

2. Which ONE of the following statements is CORRECT? A. A claim of direct discrimination based on the protected characteristic of age can be justified if the employer can show that their actions were a proportionate means of achieving a legitimate aim. B. An employer will directly discriminate against an employee, because of the protected characteristic of age, by selecting them for redundancy based on a range of fair selection criteria including the length of the employee’s service. C. An employer will not discriminate against a transsexual employee if the employee is absent from work because of gender re-assignment and the employer treats the

employee less favourably than they would treat an employee absent because of sickness or injury. D. There is never a defence to a claim of direct discrimination. Answer: The correct selection is A because direct discrimination on the basis of the protected characteristic of age has an exception to the general rule that there is no defence of justification to direct discrimination (s.13(2) Equality Act 2010). All the other statements are wrong. Selection for redundancy based on a range of fair selection criteria including length of service is not less favourable treatment because of a protected characteristic (age) so B is wrong to say that this would give rise to a claim of direct discrimination. Statement C is wrong because the provision of s16(2) of the Equality Act 2010 says this will be discriminatory (considered in WS 7). Statement D is wrong because of the age point in A and because a defence of occupational requirement can be raised to a claim of direct discrimination.

3. Which ONE of the following statements is WRONG? A. A claim of harassment under s.26 Equality Act 2010 requires proof that the claimant has been the subject of unwanted conduct, such as sexual advances, unfair criticism or exclusion. B. In a claim of harassment under the Equality Act 2010, the act of harassment is the unlawful act. There is no need to establish another unlawful act, such as dismissal or failure to appoint. C. The Tribunal will need to be satisfied that the unwanted conduct either had the purpose or the effect of violating the claimant’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. D. In deciding what effect the conduct had, the Tribunal will apply a subjective test, focussing exclusively on the claimant’s reaction to it. Answer: Only statement D is wrong as, although the claimant’s reaction will be relevant to decision as to whether the relevant effect was caused, it is not the only consideration and will therefore not be the exclusive focus of the Tribunal. Under s.26(4) Equality Act 2010, the Tribunal has to have regard to all the circumstances and to whether it was reasonable for the unwanted conduct to have had the effect described. Statements A and B are correct as a claim of harassment under s.26 does require proof that the claimant has been the subject of unwanted conduct and the harassment itself will be the unlawful act. Statement C is correct as s.26 requires either the perpetrator to have had the purpose of violating the claimant’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant or for the conduct to have had that effect.

4. Which ONE of the following statements does NOT accurately reflect the elements of a claim of victimisation? A. Victimisation arises where the claimant is subjected to a detriment because s/he does a protected act or because the perpetrator believes that the claimant has done or may do a protected act.

B. Protected acts include bringing proceedings under the Equality Act 2010 (“the Act”) or giving evidence in connection with proceedings under the Act. C. A claimant must establish that they have suffered physical or economic consequences in order to argue that they have been subjected to a detriment. D. It must be shown that someone who had not done the protected act would have been treated differently; there must be a causal connection between the protected act and the detriment. Answer: The correct selection is C. There is no requirement in s.27 Equality Act 2010 for the claimant to establish that they have suffered physical or economic consequences in order to argue that they have been subjected to a detriment. In the case of Shamoon v Chief Constable of the Royal Ulster Constabulary (2003), the House of Lords held that an act which a reasonable person might feel places them at a disadvantage would amount to a detriment and it is not necessary that it has either physical or economic consequences. Statements A and B and D correctly reflect elements of a claim of victimisation as set out in s.27 of the Act. As far as option D is concerned in the case of Cornelius v University College of Swansea (1987), the Court of Appeal held that it must be shown by the claimant that someone who had not done the protected act would have been treated differently; there must be a causal connection between the protected act and the detriment. This reflects the wording of s.27 which requires the detriment to be “because B does a protected act.

5. Explain, in a maximum of 100 words, why Richard can bring a claim of harassment on the facts set out in this example taken from the ACAS Code on Bullying and Harassment. Paul is disabled and is claiming harassment against his line manager after she frequently teased and humiliated him about his disability. Richard shares an office with Paul and he too is claiming harassment, even though he is not disabled, as the manager’s behaviour has also created an offensive environment for him. Answer: Richard can claim he has been harassed because Paul’s line manager has engaged in unwanted conduct by teasing and humiliating Paul. This conduct is related to the protected characteristic of disability. The line manager may not have had the purpose (or intention) of violating Richard’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. However, if that is the effect that the conduct has had, as long as it is reasonable for the conduct to have that effect, taking into account all the circumstances (s. 26(4)), Richard can establish that he has been harassed. It does not matter that he does not have the relevant protected characteristic himself.

PREPARATORY TASK 2 – Problem question on claiming under Equality Act 2010 Consider the scenario below and make notes which will enable you to discuss, in the Workshop, whether Nancy and/or Joe can successfully pursue any claim under the Equality Act 2010 against Racing Supreme Ltd. NANCY:  The protected characteristic is sex  This is protected under the Equality Act 2010  The unlawful act is dismissing her from her employment as they said it was ridiculous to think that a woman with a baby could still race fast cars  This is direct discrimination because they are treating her less favourably than a man with a child due to her protected characteristic  Racing will be vicariously liable for the managers actions of dismissing her  She will be able to claim compensation for loss of earning and to reflect injury to feelings JOE: -

Victimisation S.27 Subject to a detriment because he has done a protected act or someone thinks they are going to do a protected act Detriment- move to different job he didn’t want to do Protected act- giving evidence for Nancy in a dismissal claim There is a connection between the two as they are moving him for being ‘disloyal’

PREPARATORY TASK 3 – Problem question on harassment Can you consider the allegations which are summarised below and e-mail me back: Protected characteristic of RACE Potential claim HARASSMENT

(i) explaining your assessment of Ceri’s prospects of success against our client in relation to her claim of harassment  Ceri alleges she has been harassed because she is Welsh  To satisfy for harassment, there needs to be unwanted conduct, related to a protected characteristic that has the purpose or effect of violating someone’s dignity or creating a degrading or humiliating environment = s.26 EqA  Here, the conduct is “banter” towards her race as this includes nationality and it is causing her to be offended and degraded  The perception of the victim, the other circumstances of the case and whether it is reasonable for the conduct to have that effect all must be considered too  Here, she has told the person who is doing it to stop because of how she feels and he has ignored it and continued to carry on- not just a one off passing comment  Therefore, it was reasonable for the “banter” to have stopped but it didn’t  This is harassment therefore = harvest may also be liable through vicarious liability = defence ‘done all is reasonable’= as no clear training and she told the manager and he did nothing about it unlikely to fit this defence (jones v tower boot co) (ii) explaining how Harvest could be held responsible for the incident that Tilly has complained about  Tilly Upton, has brought a separate claim against Harvest, alleging that she was harassed by a colleague on a recent night out  The company can be liable for Hayley’s conduct through vicarious liability  They can discharge this by showing that they have done all that is reasonable to discharge their liability  It is irrelevant that the incident happened outside of work as it happened at a work function between work colleagues = EXTENSION OF EMPLOYMENT = CHIEF CONSTABLE OF LINCOLNSHIRE POLICE V STUBBS (SOCIAL GATHERING OUTSIDE OF WORK CAN STILL BE IN COURSE OF EMPLOYMENT AS CAN BE AN EXTENSION OF THEIR EMPLOYMENT, CONSIDER FACTS)  Here, the company offered some online training to their staff on diversity issues but this was not compulsory and it was to be done in the staffs own time, ONLY 25% DID IT  This therefore shows that they did not do all that was reasonable to discharge their duties= NOT LIKELY TO BE ENOUGH  They can be vicariously liable therefore

Workshop task 1 Justins v Seb Protected characteristic: Religion Unlawful act: dismissing him for refusing to work Saturdays due to Relevant claim: Direct Discrimination

s.13 Equality Act 2010 A treats B less favourably than others because of a protected characteristic.

= Direct discrim would fail therefore because he is not being discriminated against because he is Jewish – it is being applied to everyone that cannot work these new weekend shifts. Illustrated by the fact dan was sacked for refusing to work the weekends also. = no comparison as he hasn’t been specifically picked on

Relevant claim: indirect discrimination s.19 Eq A 2010 (1)

A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. JUSTINS HAVE DISCRIMINATED AGAINST SEB BECAUSE OF A PRACTICE OF SHIFT PATTERNS AT THE WEEKEND WHICH ARE DISCRIMINATORY IN RELATION TO SEB’S RELIGION AS A JEW BECAUSE SATURDAY IS A SABBATH DAY.

(2)

For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if — (a)

A applies, or would apply, it to persons with whom B does not share the characteristic, THE WEEKEND WORKING APPLIES TO ALL THE EMPLOYEES

(b)

it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, SEB CANNOT WORK ON SATURDAYS AS IT IS AGAINST HIS RELIGION

(c) it puts, or would put, B at that disadvantage, HE’S BEEN SACKED BECAUSE OF IT (d)

A cannot show it to be a proportionate means of achieving a legitimate aim.

JUSTINS WILL TRY TO ARGUE IT’S A BUSINESS NEED HOWEVER ALTHOUGH THE WEEKEND WORKING IS A PROPORTIONATE AIM- SACKING HIM BECAUSE HE CANNOT WORK ONE OF THE 2 WHEN HE IS OFFERING TO WORK THE OTHER IS NOT A PROPORTIONATE SOLUTION. EASILY SOLVED WHEN HE IS WILLING TO COMPROMISE!

VICARIOUS LIABILITY: actions of manager are sufficient for us to go after the company via vicarious liability

DAN V JUSTINS - No protected characteristic so cannot claim direct or indirect discrim

Justins v Dan

Chief Constable of Lincolnshire v Stubbs 1999  S, a female police officer, complained to an employment tribunal that a fellow officer, W, had sexually harassed her during social events which were connected with work  The tribunal upheld her complaint, ruling that W had discriminated against S in the course of his employment and that his employer, was vicariously liable for those acts under the Sex Discrimination Act 1975 s.41(1)  Section 17(1) of the 1975 Act provided that the holding of the office of constable would be treated as employment by the chief officer of police in respect of any act done by him in relation to that constable  It was argued that the tribunal had failed to determine whether W could be said to be "any other person" within the meaning of s.17(7)(b), so that the Chief Constable of LC was the officer in control  The tribunal had not considered the application of s.17(7)(b) because it had held that W and S were "persons appointed" to the LC for the purposes of s.17(7)(a), that their secondment to RCS did not alter that state of affairs, and that accordingly the Chief Constable of LC was a "chief officer of police" under s.17(7) (a)  The Chief Constable submitted that on their secondment to RCS, W and S had ceased to be "persons appointed" to the LC under the Police Act 1996 and that

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since they were not "persons appointed" to the RCS, the tribunal had therefore erred in holding that s.17(7)(a) applied Held, dismissing the appeal, that the tribunal had not erred in holding that s.17(7)(a) applied W was a "person appointed" under the 1996 Act to the LC The argument that that appointment ceased on his secondment to the RCS was not sustainable, as the Home Office circular made it clear that all seconded officers remained at all times members of their home forces for all purposes That conclusion was reinforced by the fact that RCS did not have separate legal status or personality Section 17(7)(b) of the 1975 Act was limited to those officers, such as Ministry of Defence police, who were not appointed to a Home Office controlled police force under the 1996 Act The argument that W fell within both s.17(7)(a) and 17(7)(b) could not be sustained Although the two incidents took place away from the actual work place, they occurred during work based social gatherings In that context they could be seen as occurring in the course of employment in an extended version of the work place...