Discrimination - Week 1 (13)
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School
University of Exeter**We aren't endorsed by this school
Course
EL EMP04
Subject
Law
Date
Jan 6, 2025
Pages
17
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1/26/241Term 2WELCOME BACK!This Term TopicsuDiscrimination LawuTrade UnionsuCurrent Issues in Employment Law uRevision and Assessment preparationuAssessmentsFebruary formative:uFull details on ELEuWorth doing as it is excellent practice for the summativeMay summative examination:uWorth 2/3 of the course uAnswering 2 questions in 2 hoursu2000 wordsuMix of essays and problem questions uDiscrimination STATUTORY OVERVIEW AND PROTECTED CHARACTERISTICSDiscrimination Law – Term 2uuFirst 5 weeks will be on discrimination uTwo seminars on discrimination law uFirst Seminar – Types of DiscriminationuSecond Seminar – Justification/ defences and remediesuFormative exam will be a discrimination problem question Ødue Feb 2024uNotes on readinguMany textbooks will include references to lots of other contexts for discrimination law (education, service provision, public law) uI will mostly be using cases relating to the workplace uThere are many of cases in this area12345623456
uThere are many of cases in this area§Try to distinguish between cases that are statements of principles/analysis and cases that are demonstrations on the facts. uThe Equality Act 2010 (‘EQA’)The Act restated discrimination law which had previously been contained in a number of different Acts. It cconsolidated law which was contained in a number of different pieces of legislation. uTheSex Discrimination Act 1975(SDA 1975).uTheRace Relations Act 1976(RRA 1976).uTheDisability Discrimination Act 1995(DDA 1995).uTheEmployment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660)(Religion or Belief Regulations).uTheEmployment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661)(Sexual Orientation Regulations).uTheEmployment Equality (Age) Regulations 2006 (SI 2006/1031)(Age Regulations).uThe Equality Act 2010 cont…uKey aims in the introduction to the Act:u“reform and harmonise” equality law u“to increase equality of opportunity” u“to require the exercise of certain functions to be with regard to the need to eliminate discrimination and other prohibited conduct” uThe FrameworkuPart 2 sets out the concepts uPart 5 applies concepts to work-based activities uPart 9 sets out the enforcement mechanisms NB: in this course, we will not be studying Equal Pay in detail. u789789
Code of Practice•Equality and Human Rights Commission•Purpose: to aid understanding of the Act •“the Code can be used in evidence in legal proceedings brought under the Act. Tribunals and courts must take into accountany part of the Code that appears to them relevant to any questions arising in proceedings.”uThe Act – Explanatory Notesu“Their purpose is to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.” uPrepared by Government Equalities Office, DWP etc etcugov.uk uThe Protected CharacteristicsThe ‘9’ Protected CharacteristicsEQA 2010 - Listed in s.4uageudisabilityugender reassignment umarriage and civil partnership uuuupregnancy and maternity uraceureligion or beliefusexusexual orientationuThe Protected CharacteristicsuEach characteristic is explained by the Equality Act 2010 or by reference to case-law. Øsection 5 -‘age’ is a person of a particular age group:101112131214101112131214
Øsection 5 -‘age’ is a person of a particular age group:ØSection 6 - DisabilityØSection 7 - Gender ReassignmentØSection 8 - marriage and civil partnershipØSection 9 - RaceØSection 10 - Religion/ beliefØsection 11 - ‘sex’ is a reference to a man or a woman Øsection 12 -‘sexual orientation’ towards persons of the same/opposite/either sexØSection 18 – Pregnancy and maternityuAge – Section 5 EQASection 5 - Age(1)In relation to the protected characteristic of age—(a)a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group;(b)a reference to persons who share a protected characteristic is a reference to persons of the same age group.(2)A reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of agesuDisability – Section 6 EQAuTwo models of defining disabilityuMedical Model: disability is a personal attribute of the individual uSocial Model: disability is a consequence of the way society is designed (i.e. with a person without disabilities in mind) uUK tends towards the Medical ModeluSocial Model is adopted by the UN Convention on the Rights of Persons with Disabilities uDisabilityuThree requirements derived from section 6 EQA:151617151617
uThree requirements derived from section 6 EQA:1. ‘physical or mental impairment’2. … that has a ‘substantial’ 3. … and ‘long-term adverse effect’ on [his or her] ability to carry out normal day-to-day activities’uSome conditions are automatically included (sch 1, para 1)ue.g. cancer, HIV, multiple sclerosis, certified sight impairment uProgressive conditions will be included when anadverse effect occurs if substantial adverse effect is likely in future (para 8)uDisabilityu‘impairment’ is a functional definition uDisability’s effect on C’s capabilitiesuMay vary person to person – e.g. mental health condition u‘Substantial’ is more than trivial or minor and ‘long-term’ means it has lasted or is likely to last for at least 12 months/rest of C’s life (para 6)uAny ‘adverse effect’ as long as there is some link between effect and impairment u‘normal day-to-day activities’ are those done by people on a regular basisuGender reassignment – Section 7 u“proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.”uDavies: broad definition (e.g. no requirement of medical supervision, ‘other attributes’)uCombination of biological sex and gender reassignment protection has been criticised as narrow – gender identity? (CEM p/347-8)uTaylor v. Jaguar Land Rover 2020 – ET s.7 extended to employee who identified as non-binary and gender fluid in this case.uMarriage and Civil Partnership – S.8181920181920
For the purposes of protection under the EQA 2010:• Marriage covers any formal union which is legally recognised in the UK as a marriage. Therefore, marriage between a man and a woman and between a same-sex couple are covered.• A civil partnership under the Civil Partnership Act 2004 is between same sex partners and, since 2 December 2019, opposite sex partners in England and Wales.NB - Single people and people in relationships outside of marriage or civil partnership (whether or not they are cohabiting) do not have this characteristic. Race – section 9S. 9(1)Race includes—(a)colour;(b)nationality;(c)ethnic or national origins.(2)In relation to the protected characteristic of race—(a)a reference to a person who has a particular protected characteristic is a reference to a person of a particular racial group;(b)a reference to persons who share a protected characteristic is a reference to persons of the same racial group.(3)A racial group is a group of persons defined by reference to race; and a reference to a person's racial group is a reference to a racial group into which the person falls.(4)The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group.uRace – section 9u‘racial group’ can be defined in several ways•Colour, nationality(relationship between citizen and state) or ethnic or national origins • Can be defined by inclusion or exclusion from group (e.g. British citizens ornon-British citizens)us.9(4): can comprise of two+ racial groupsue.g. Black Britons(EHRC examples) u21222122
Raceunational origins: definition from EHRC Code of Practice:Must have historic and geographic elements, which at least at some point in time indicate the existence or previous existence of a nation. e.g. because Scotland was at one point separate from Great Britain, Scottish is a protected national originuRaceuEthnic origins: definition from EHRC Code of Practice, derived from Mandla v Lee [1983] uMust have: Ølong shared history and a cultural tradition of it’s own; and,uMay have one or more of the following characteristics: Øa common language; a common literature; a common religion; a common geographical origin; or being a minority; or an oppressed group. uRaceuRace discrimination pre-dated religious discrimination protection• some religious groups have been recognised as having a shared ethnic origin• e.g.Mandla v Lee[1983]: Sikhs; Seide v Gillette [1980]: JewsuOther recognised groups include gypsies (CRE v Dutton [1989]), as well as Irish Travellers and Scottish Travellers uReligion/ Belief – Section 10(1) Religion means any religion and a reference to religion includesa reference to a lack of religion.(2)Belief means any religious or philosophical belief and a reference to belief includesa reference to a lack of belief.” uSo, you get protection for beinga Christian or for not being a Christian u2324252623242526
Religion/BeliefuReligion: ‘clear structure and belief system’ and can include denominations or sects of a religion uCan recognise large and smaller organised religions uAlso includes detriment faced as a result of manifestations of a religion or philosophical belief ØAchbita, Bougnaoui[2017]: CJEU confirms – dismissed from employment as a result of desire to wear Islamic headscarfuReligion or BeliefuDefinition of philosophical belief comes from Grainger v Nicholson [2010] on old RegsØDrawing on Art.9 and international/national decisions uReligion/ BeliefGrainger v Nicholson [2010]uMr Grainger’s belief in impending catastrophic climate change, moral duty to lead our lives in a manner that avoids it, and to persuade others to do the same ØAffected his choices regarding his home, travel, products he used uEAT confirmed that this was capable of being a protected Philosophical belief. uReligion/BeliefGrainger at [24]: set out 5 criteria – belief must be/have:‘(i) … genuinely held. (ii) … a belief and not … an opinion or viewpoint based on the present state of information available. (iii) belief as to a weighty and substantial aspect of human life and behaviour. (iv) attain a certain level of cogency, seriousness, cohesion and importance. (v) worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.’2728293027282930
uReligion/beliefGrainger: uPhilosophical belief does not have to be shared by others uDoes not need to govern the whole of someone’s life uDistinction between belief in a political philosophy (P.B) and support for a political party (not a P.B)uFinal limb of test could exclude racist/homophobic philosophies uReligion/BeliefHarron v Dorset Police [2016]: belief that public services improperly wasted money ØET: it was genuinely held but more of an objective than a beliefØEAT (Langstaff): threshold on criteria should not be set too highØMore than trivial matters (iii), intelligible and capable of being understood (iv) ØAgreed with ET that it could be relevant that belief was focused on the workplace – insufficiently fundamentalØReferred back to Judge in light of guidance. uReligion/BeliefuGray v Mulberry [2019]: admin assistant refused to sign copyright agreement – she was dismissedØBelief: human/moral right to own copyright and moral rights over creative outputs ØET: did not meet the cogency, seriousness threshold ØEAT: agreedØCA: she didn’t sign because of the wording of the clause and because she wanted more protection - Dispute about wording could not be a Philosophical belief. uReligion/BeliefuConisbee v Crossley Farms[2019]: preliminary issue whether vegetarianism is a Philosophical belief. ØET: belief that world would be a better place if animals not 3132333431323334
ØET: belief that world would be a better place if animals not killed for food not capable of protection Ø‘It is simply not enough to have an opinion based on some real, or perceived, logic.’ ØIt is a lifestyle choice, not a belief about substantial aspect of human behaviour ØMany reasons for being vegetarian – no cohesion & cogency uReligion/BeliefuConisbeehas been criticised ØContrary to EHRC Code of Practice and previous case-law statementsØDistinction between veganism and vegetarianism drawn uReligion/BeliefuCasamitjana v League Against Cruel Sports [2020]: issue on status of ethical veganism uwww.slatergordon.co.uk/media-centre/blog/2019/12/ethical-veganism/- interesting articleuET judge agreed that ethical veganism is a protected philosophical belief. uReligion/BeliefOther examples from decided cases -uMcClintock [2008]: Magistrate who objected to same-sex couples adopting because of insufficient evidence it was in child’s best interests – EAT: not a Philosophical belief - opinion rather than a belief uOlivier v DWP [2013]: democratic socialism was accepted as a philosophical belief. (NB: O was also a committed member of Labour Party)uLisk v Shield Guardian [2011]: Belief in wearing a Remembrance Poppy to show respect did not meet cogency, cohesion and importance threshold. uReligion/ Belief3536373835363738
uInteresting to contrast Philosophical belief with religion uC is an adherent to a religionØDo not have to demonstrate regular worship or influence of belief uVersusfor a Philosophical belief claim, C must:Øestablish the belief is within the scope of section 10, including ‘genuinely held’ and Ø“adduce evidence from which the tribunal could conclude that what was done was done on the grounds of his belief”uSex – s.11S. 11 EqA 2010 states that, in relation to the protected characteristic of sex:• A reference to a person who has a particular protected characteristic is a reference to a man or to a woman.• A reference to persons who share a protected characteristic is a reference to persons of the same sex.uuInteresting point in relation to childcare -InEssop v Home Office (UK Border Agency) [2017] ICR 640, Baroness Hale considered that one of the "context factors" relevant to a claim of indirect discrimination may be "the expectation that women will bear the greater responsibility for caring for the home and family than will men".uSex cont…..Dobson v North Cumbria Integrated Care NHS Foundation Trust The Judge said:“whilst things may have progressed in that men do now bear a greater proportion of child caring responsibilities than they did decades ago, the position is still far from equal”.uHeld - childcare disparity between men and women was a matter of which judicial notice must be taken into account where relevant.uEAT - remitted the case back to the tribunal for the claims of unfair dismissal and indirect sex discrimination to be heard againu39403940
uSexual Orientation- s.12S.12 EqA 2010, sexual orientation is defined as a person's sexual orientation towards:uPersons of the same sex;uPersons of the opposite sex; oruPersons of either sex.u• Wide remit – covers all orientations.uPregnancy/maternity – s.18uThe is no definition of pregnancy and maternity in the EqA2010.uPregnancy and maternity discrimination in the workplace is prohibited in the specifically identified circumstances set out ins.18 of the EqA 2010uit is unlawful for an employer to discriminate by treating a woman unfavourably because:§of her pregnancy during the protected period(section 18(2)(a);§of an illness she has suffered as a result of her pregnancy during the protected period (section 18(2)(b));§she is on compulsory maternity leave (section 18(3));§she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave (section 18(4)).uPregnancy/Maternity cont..The Equality and Human Rights Commission (EHRC) in June 2017 found:• 77% of mothers surveyed said that they had had a negative and possibly discriminatory experience during pregnancy, maternity leave or after their return from maternity leave.• 70% of employers surveyed thought that women should declare whether they are pregnant during recruitment and 25% thought it was reasonable to ask women at the interview stage whether they intended to have children or more children414243414243
uSymmetry of Protected CharacteristicsuIn general, protected characteristics are symmetrical in protection. uExamplesØAny racial group ØAny religion/belief or lack of religion/belief ØA man or a womanuEveryone is protected to the same level and the advantaged group can challenge discriminationuSymmetryExample: uJames v Eastleigh BC [1990]ØMan challenging sex discrimination – women got in for free at an earlier age uControversial – trade-off between effectiveness for disadvantaged groups and gaining public support?uAsymmetrical Protected CharacteristicsuSome Protected Characteristics only protect individual/group with the characteristics uSection 6: people without disability do not get protection uSame with gender reassignment and marriage and civil partnership as single people are not protecteduSection 18: pregnancy ‘of her’ resulting illness/leaveuAsymmetrical protectionuFor disability and marriage and civil partnership see also section 13 uIt must be the victim of the discrimination who is married/a civil partner – s.13(4)uTreating people with disabilities more favourably is not discrimination against a person without a disability – s.13(3)uAsymmetrical Protected CharacteristicsuNot always obvious why they are/remain asymmetrical44454647484445464748
uNot always obvious why they are/remain asymmetricalØe.g. no protection for single people, only married people uSome have justifications Ølaw seeking to tackle unique experiences of a member/subset of a clearly disadvantaged group Øe.g. persons undergoing gender reassignment, persons with disabilities ØPregnancy as a condition unique to womenuGrounds v GroupsuGrounds-based model: generally symmetrical protection across a range of protected characteristics. uGroup-based model: asymmetrical protection focused on protecting disadvantaged groups in society. uuWhat are benefits and non-benefits of each? Which would you prefer the law to reflect?uThe Nature of the ListuEquality Act 2010 is a closed list of 9 grounds.uTreaty on the Functioning of the European Union, Art 10 is a closed list of 6 grounds. uEU Charter of Fundamental Rights, Art 21 is a closed list of 14 grounds. uEuropean Convention of Human Rights, Art 14: ‘without discrimination on any ground such as…’ list of 10 grounds and ‘other status’.ØEnumerated plus open clause – “extendable”uThe Nature of the ListuClosed list can be extensive or limiteduDelineation of grounds becomes a significant issue ØIs X thing within the scope of a protected characteristic?uRequires legislative amendment - out-of-date and unresponsive? uOr expansive judicial interpretation - uncertainty for actors? Stretching limits of legitimate interpretation?u495051495051
uThe Nature of the ListuExtendable list gives examples of unlawful grounds from legislator/drafter - indicator of societal condemnationuOffers a starting points for the courtsuRelies on reasoning by analogy by judiciary - flexibility? - uncertainty?- dependent on the courts’ approachuThe Nature of the ListOpen liste.g.: US Constitution, 14thAm - no State can deny anyone the equal protection of the lawuNo specified groundsuComplete judicial discretionuBurden upon claimants to prove the existence of a ‘suspect class’ deserving of ‘strict scrutiny’ of US Supreme CourtuIdentifying Protected CharacteristicsuSandra Fredman, Discrimination law - Chapter 3: potential factors uImmutability/inability to changeuAspect of personal identityuMarginalisation from political processuMembership of a minority groupuDignity uHistory of disadvantageuAdditional CharacteristicsuTwo possibilities not been brought into force/acted upon usection 1: socio-economic disadvantage public sector equality dutyusection 9(5): Minister must add caste as an aspect of race u23 July 2018: Gov’t announced no legislation, relying on case-law instead, and repeal of the duty usee House of Commons Briefing Paper Number 06862 for 5253545552535455
usee House of Commons Briefing Paper Number 06862 for further info uAdditional CharacteristicsuPersonal appearance(tattoos, piercings, hairstyle, grooming, dress)uLifestyle choices (smoking, not/drinking alcohol)uProperty uGeographical origin uuPolitical opinion uGenetic characteristics uLanguage/accent uClass uSexual identityuParenthood uDual Discrimination uSection 14 (currently prospective) would have targeted discrimination because of two of C’s characteristics • e.g. discrimination against a black man, a young woman, or a gay person with a disability uNot introduced into force uMust prove both separatelyuDifferential protection?To think about as we continue… uIs the protection of all characteristics “equal” under the Equality Act 2010? uShould each characteristic be protected in an identical way? uWhich characteristics deserve more protection in your view (if any)? Why? uNext lectureTypes of discrimination:vDirect discrimination (s.13) focuses on discriminatory treatment 56125758595612575859
vDirect discrimination (s.13) focuses on discriminatory treatment of individuals/groupsvIndirect discrimination (s.19) focuses on discriminatory impact/effects upon groups vHarassment (s.26) prohibits harassment connected to a protected characteristic vVictimisation (s.27) protects against retaliation for enforcing/supporting a victim of harassment