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Lecture 10 Discrimination - Coggle Diagram

- - - - requires reference to the reality of historic and ongoing group disadvantage.
      - Equality of outcome or of results,
        
        Judges equality by the outcomes rather than process- Usually raised to defend the preferential treatment of members of certain disadvantage groups
    - - Equalisation on starting points- tackles the reality of unequal social group positioning
      - adheres to a formalistic emphasis on equality of process than results
- - - - Case 43/75 Defrenne (No 2) [1976] ECR 455
      - Article 119 pursues a double aim
        
        Economic and Social
        
        Case C-50/96 Deutsche Telekom AG v Schröder [2000] ECR I-743:
        
        discriminated against on grounds of sex is one of the fundamental human rights whose observance the Court has a duty to ensure …
        
        ... not merely an economic union ...to ensure social progress and seek constant improvement of the living and working conditions of the peoples of Europe
        
        discriminated against on grounds of sex is one of the fundamental human rights whose observance the Court has a duty to ensure …
    - - Age,
        
        Disability
        
        Religion or Belief,
        
        Race & Ethnicity,
        
        Sexual Orientation
        
        Article 19 TFEU
        
        Directives
        
        Limited area but judgements from Redfearn and Eweida significant
        
        Redfearn v UK
        
        Eweida and Others v UK
  - - - s 83(2)(a) of the Equality Act 2010
        
        But recent case law suggests the personal scope of the Equality Act is basically on all fours with the definition of ‘worker’.
        
        employee” definition, to encompass workers, some agency workers, not satisfy the usual “employee” or “worker”
    - - s. 39(1)-(2) of the EqA2010:
        
        o S. 39 - Employees and applicants
        
        all the instances listed in reference to the characteristics of race and sex, direct discrimination can arise in
        
        Saunders v Richmond BC; Brennan v Dewhurst Ltd
        
        o Questions asked/statements made at interviews
        
        Batisha v Say
        
        o Questions asked/statements made at interviews
        
        Jeremiah v MoD
        
        o Terms of employment, subject to a de minimis proviso
        
        Zarczynska v Levy
        
        o Dismissal, including dismissal for refusing to obey and order not to serve ‘coloured’ persons in a bar
        
        Relaxation Group plc v Rhys-Harper (FC) [2003] IRLR 484 (HL)
        
        discrimination must be connected to the employment relationship, but extends to the period after termination
  - - - 1) what each protected characteristic refers to
        
        Race
        
        Karen Monaghan, Monaghan on Equality Law (2nd edition 2013, p.204)
        
        Should the list be expanded? Kate Malleson
      - what each type of prohibited conduct
      - in what situations each type of conduct is prohibited, with regard to which protected characteristics
  - - - (1) A person
        (A) discriminates against another
        (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
      - 3 Overlapping elements
        
        1) A treats B less favourably (less favourable treatment)
        
        Element One: Less favourable treatment
        
        unequal treatment in the distribution of some benefit or detriment, like hiring or promotion or dismissal
        
        See also EHRC Statutory Code of Practice on Employment
        
        3.4 ...being deprived of a choice or excluded from an opportunity.
        
        3.5 Not have to experience actual disadvantage ...It is enough that the worker can reasonably say that they would have preferred not to be treated differently from the way the employer treated
        
        Case C-57/07 Centrum v Firma Feryn. [2008] ECR I-5187
        
        EA s.13(5); Pel Ltd v Modgill)
        
        2) than C (the comparator); and
        
        Element Two: The comparator
        
        raises the question: less favourably than who?
        
        a. The treatment of the claimant must be compared with that of an actual or a hypothetical person – the comparator – who does not share the same protected characteristic as the claimant
        
        the comparator can be an actual person in the claimant’s workplace or a hypothetically constructed one
        
        Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337)
        
        b. but who is (or is assumed to be) in not materially different circumstances from the claimant’
        
        must be no material difference between the circumstances relating to each case (s.23 Equality Act).
        
        Wakeman v Quick Corporation, [1999] IRLR 424,
        
        Exception requirement for pregnancy discrimination
        
        need only show that she experienced unfavourable treatment that can be attributed to her pregnancy; she need not meet the comparative standard of less favourable treatmen
        
        Azmi v Kirklees MBC [2007] ICR 1154, for an example of material circumstances in the context of religion
        
        3) B’s less favourable treatment is because of a protected characteristic (‘because of’).
        
        Element Three: ‘Because of a protected characteristic’
        
        o Discrimination by association
        
        Coleman v Attridge Law [2010] ICR 242
        
        o Perceptive discrimination
        
        English v. Thomas Sanderson [2008] EWCA Civ 1421
        
        What does it mean to say that the unfavourable treatment was ‘because of’ a protected characteristic?
        
        James v. Eastleigh Borough Council, [1990] IRLR 288
        
        Court establishes the ‘but for’ causation test: but for the sex/race of the complainant would s/he have been treated differently
        
        involves an objective test of causation not a motive-based test
        
        R v Birmingham CC ex parte EOC
        
        Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830
        
        The ‘but for’ test has been put into question by later cases suggesting instead a ‘reason why’ test:
        
        3 more items...
        
        Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 (HL)
        
        did the claimant, because of the protected characteristic, receive less favourable treatment than others?
      - Justifications
        
        CANNOT be objectively justified
        
        Exception age discrimination (s.13(2) of the Equality Act 2010).
        
        Genuine Occupational Requirements (ORs)
        
        Schedule 9, paras 1-6 of the Equality Act 2010): a very narrow exception to direct discrimination
        
        OTHER EXCEPTIONS
        positive action and special GORs that apply with respect to religion.