Employment Law- W4

What is discrimination law?

The body of law that prohibits unfair or unequal treatment of individuals based on certain protected characteristics

What are the protected characteristics?

• Race or ethnicity

• Sex or gender

• Sexual orientation

• Religion or belief

• Disability

• Age

What is the equality act 2010?

The main anti discrimination law in the UK. The act protects people from discrimination based on 9 characteristics.

1. Age

2. Disability

3. Gender

4. Marriage

5. Pregnancy

6. Race

7. Religion or belief

8. Sex

9. Sexual orientation

What are the types of discrimination?

1. Direct

2. Indirect

3. Victimisation

4. Harassment

What is direct discrimination?

Directly treating someone less favourably because of a protected characteristic.

What is indirect discrimination?

An apparently neutral ‘provision, criterion or practice’ puts members of a protected group at a comparative disadvantage

What is harassment?

Unwanted conduct related to a protected characteristic that violates dignity or creates an intimidating, hostile,degrading, humiliating or offensive environment.

What is victimisation?

Subjecting someone to a detriment because they did a protected act

What is discrimination by perception?

This occurs where someone is treated less favorably because they are perceived to have a protected characteristic whether or not that perception is correct.

E.g. an employer refuses to promote an employee because they believe he is gay even though he is not. (english v thomas sanderson blinds Ltd 2008)

What is discrimination by association?

This occurs where someone is treated less favourably because of their association with someone who has a protected characteristic.

What is sex discrimination?

Occurs where a person is treated less favourably because of their sex

What is the equal pay act 1970?

To ensure equal pay for men and women doing:

• Like work

• Work rated as equivalent

• Work of equal value

What is the sex discrimination act 1975?

To prohibit sex discrimination in:

• Employment

• Education

• Housing

• Goods and services

What is direct sex discrimination

A person is treated less favourably because of their sex. The test often used is the “but for sex” test

Key case: James v eastleigh bc 1990 “But for their sex, would the claimant have been treated the same?”

• No defence

• Occupational requirements

• Requires proof of a real detriment (no detriment no case)

• Postive action

What does it mean no defence for direct discrimination? (e.g. sex)

It cannot be objectively justified, even if the employer’s reasons seem reasonable or cost effective.

The only exceptions are:

• Occupational requirements

• Positive action

What are occupational requirements?

Certain jobs do require a man or a woman by nature to work.

What is indirect discrimination? (e.g. sex)

Under the Equality Act (2010) it occurs where a provision,criterion or practice puts people of a particular sex at a particular disadvantage compared with others, and cannot be justified

Summarise indirect discrimination? (e.g. sex)

• Provision, criteria or practice - any rule, policy, requirement written or unwritten

• The PCP must apply equally to men and women

• generally applied

• Adverse impact on a “considerable position”- The PCP must put one sex at a particular disadvantage compared with the other

• Objective justification

• A proportionate means of achieving a legitimate aim

What is Victimisation?

Under the Equality Act 2010, victimisation occurs where a person is subjected to a detriment because they have done a protected act

Summarise harassment.

• Vicarious liability- employer is responsible for all actions of its employees while they are at work

• At work

• All reasonable steps

What is vicarious liability?

Employers are vicariously liable for discriminatory acts, harassment, or victimisation carried out by employees in the course of employment whether or not the employer knew or approved.

Explain all reasonable steps?

An employer can avoid vicarious liability if they prove they took all reasonable steps to prevent the discriminatory act

What are the remedies for sex discrimination?

If discrimination is established, employment tribunals and courts may award remedies designed to compensate not punish.

• Compensation for financial loss

• Injury to feelings- compensation awarded for the emotional distress caused

• Many claims are settled ahead of a court hearing

Explain why many claims may be settled ahead of a court hearing?

Due to:

• Cost and risk of litigation

• Reputational concerns

• Uncertainty of outcomes

What is a dismissal?

A dismissal occurs when an employee’s contract is terminated by the employer, or the employee resigns in response to the employer’s fundamental breach, whether with or without notice.

To succeed an unfair dismissal the triabl considers what 3 questions?

1. Is the claimant entitled to pursue the claim?

2. What was the reason for dismissal?

3. Was the dismissal handled reasonably?

What are the 2 automatically fair reasons for dismissal?

• People engaged in unofficial industrial action

• Reasons of national security

Where a dismissal is found to have occurred for one of these reasons the employer wins the case

Explain, is the claimant entitled to pursue the claim?

• The claimant must be an employee, not just a worker or contractor

• Must have continuous service with the employer (2 years)

• No minimum for claims of automatically unfair dismissal

• Must file within the statutory time limit: 3 months from dismissal

Explain, what was the reason for the dismissal?

The reason for dismissal must be identified and fair. E.g.

1. Capability or qualifications- poor performance or ill health

2. Conduct- gross misconduct, breaches of policy

3. Redundancy- genuine redundancy situation

4. Statutory restriction- continuing employment would break the law

5. Some other substantial reason

Explain, was the dismissal handled reasonably?

When determining whether a dismissal was fair, tribunals apply the “range of reasonable responses” test.

• Whether the employer acted within the range of responses a reasonable employer might take

• Procedure- fair procedure is critical for reasonableness

• Consistency- employers should apply policies consistently across similar cases

• Mitigating circumstances

Explain procedure

Fair procedure is critical for reasonableness:

• Conduct a full and fair investigation into the facts

• Give the employee notice of the allegations

• Provide an opportunity to respond

• Allow the employee to appeal

• Document decisions clearly

What are the remedies if dismissal is found unfair

If the dismissal is found unfair, remedies include:

• Reinstatement- back to the old job

• Re-engagement- similar job with the same employer

• Compensation- financial loss + “basic award” (based on salary and years of service)

What are the UK government plans under the employment rights act 2025?

• Unfair dismissal rights shortened from 2 years to 6 months

• Banning fire/re-hire and zero hours

• Repeal of laws on industrial action

• Fair work Agency will be established to strengthen and consolidate enforcement of employment rights