1. DISCRIMINATION: AN OVERVIEW Catherine Rayner Caroline Lody 7BR

2. CHARACTERISTICS Race Sex Gender reassignment (pre, undergoing or post)
Colour (e.g. Black)
Nationality (e.g. British)
Ethnic origins (e.g. Asian)
National origins (e.g. Irish)
Non-group (e.g. ‘non-British’)
Sex
Gender reassignment (pre, undergoing or post)
Marriage and Civil Partnerships
Sexual Orientation
Religion
Age
Disability
Pregnancy and Maternity

3. CHARACTERISTICS - RELIGION
Religion – wide definition includes:
any religious or philosophical belief (e.g.Darwinism or man-made climate change)
a lack of religion.
Defining factors include:
Collective worship
Clear belief system
Profound belief affecting way of life or view of the world
Limitations on belief
Genuinely held
Not an opinion or viewpoint
Weighty and substantial aspect of human life and behaviour
Level of cogency, seriousness, cohesion and importance
Worthy of respect in a democratic society
Not incompatible with human dignity
Not in conflict with the fundamental rights of others

4. CONTEXTS Arrangements: Refusal to confer benefit
recruitment process
terms of employment
Refusal to confer benefit
‘benefit’ = any advantage in the workplace e.g. promotion, transfer, training, facilities or services
Any Other Detriment – safety net
physical or economic consequence unnecessary
employee may be subject to a detriment she is unaware of

5. DIRECT DISCRIMINATION
Less favourable treatment – low bar
treatment must be such that complainant can reasonably complain about it
Comparators – must be like for like, save that they are not a member of the protected class
Actual (real life)
Hypothetical

6. INDIRECT DISCRIMINATION
Provision, criterion or practice (PCP)
indirect discrimination occurs when an employer applies a PCP which is discriminatory to persons who share a protected characteristic.
PCP must be applied equally to all
Defence: PCP is a proportionate means of achieving a legitimate aim
Arrangements
Justification
Burden of proof on employer
Objective test
PCP must be appropriate and necessary
No indirect discrimination for perceived membership

7. Indirect Discrimination and testing
In Essop v Home Office ( UK Border Agency) the claimants
Shared a the characteristic of race ;
All took the same qualifying test for promotion as the whole group
Statistically black entrants did less well than white entrants – this was persistent over time suggesting more than personal qualities being the cause
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8. Indirect Discrimination and testing
On analysis no obvious cause or explanation for the differing results
Question for the Courts was, in the absence of an explanation, but where there is an adverse impact on a group sharing the characteristic of race, is there unlawful discrimination?
Yes say the SC.
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9. Indirect Discrimination and testing
For indirect discrimination to exist there need only be adverse impact on a group who share a protected characteristic resulting from the application of a PCP.
There is no need for the claimant to also demonstrate a causal link of race between the PCP and the outcome.
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10. Indirect Discrimination and testing
The purpose of indirect discrimination protection is to prevent disparity of outcomes
The causes of discrimination are not always evident so the protection exists even where the cause is unknown, provided that there is a disparity of outcome
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11. Indirect Discrimination and testing
The provisions allowing justification of indirect discrimination ensure that the discriminatory effect can be weighed against the importance or necessity of the particular measure
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12. Naeem v Secretary of State for Justice
The claimant is a Muslim prison Chaplin
The pay scale in prisons rewards long service
The pay of Muslim prison Chaplins was, on average, significantly lower than that of Christian Chaplins
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13. Naeem
The prison service argued that this was because the Muslim Chaplins had not been recruited to the service until more recently, in response to particular need;
Therefore there was no indirect discrimination – the cause was not the faith of the Chaplin but the length of service
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14. Naeem Again the SC find that this is incorrect
Indirect discrimination is concerned with outcomes not causes
It is enough that a PCP has an adverse impact on a group whose members share the characteristic
Here the use of long service as the mechanism for pay progression had an adverse impact and would only be lawful if objectively justified
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15. Government Legal Service v Brookes
Claimant is trainee lawyer with Asbergers
Required to take an online psychometric multiple choice test which she failed by 2 marks
ET found that the requirement that she answer the situational judgment test questions as multiple choice rather than in short narrative form was indirect discrimination
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16. Government Legal Service v Brookes
The ET found that she was placed at a disadvantage because she lacked social imagination;
This was a disadvantage which would be shared by others with the same disability;
The requirement for the test was considered by the ET not to have been justified by the respondent
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17. Implications and lessons from Essop; Naeem and Brookes
Methods of testing applicants for professional roles and career advancement may discriminate if they do have an adverse impact on a group, or if they would have that impact;
Profiling of the protected characteristics of applicants at all stages will demonstrate areas of potential challenge;
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18. Implications and lessons from Essop; Naeem and Brookes
Professional regulation and PSED require diversity monitoring and it is of course best practice;
Monitoring also requires interrogation of outcomes and identification of potential difficulties – if a disparity is longstanding and impacting on the profile of the workforce it will be far harder to justify
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19. Implications and lessons from Essop; Naeem and Brookes
An organisation that does not address the issue will find justifying a discriminatory process even harder;
Respondents who do not disclose monitoring data will also face questions about why no disclosure
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20. VICTIMISATION
It is unlawful to subject a person to a detriment because she does a protected act or it is believed she has, or may do a protected act.
Protected Act
Bringing proceedings under the Act
Giving evidence or information in connection with proceedings under the Act
Doing any other thing in connection with the Act
Making an allegation that someone has contravened the Act
No Comparator needed
Causation – the victim’s treatment and the doing of a protected act must be connected.

21. HARASSMENT ii. Sexual Harassment Four types identified by Act:
i. Related to a protected characteristic
Perception
Discriminatory grounds
Unwanted conduct
Purpose or effect
Hypersensitivity
No comparator
ii. Sexual Harassment
iii. Victimisation for rejecting or submitting to harassment
iv. Third party harassment
Associative harassment

22. CAUSATION
Unconscious – subjective reason for discrimination is immaterial to liability – there does not need to be an intention to discriminate.
Significant Influence
Protected characteristic need not be only reason for less favourable treatment
‘But for’ test useful tool
Perception - ‘because of’ replaces ‘on the grounds of’, thereby encompassing discrimination by perception (‘you’re gay’ to a heterosexual man).
Associative – ‘because of’ also encompasses discrimination by association (resignation due to instruction not to serve black customers).

23. Proving Discrimination
Balance of Probabilities
Prima Facie Case
Inferences
Something more than different treatment
The claimants burden – the respondents explanation

24. Pregnancy – special regime
Protection during pregnancy
Protection while on maternity leave
Right to return to same job or suitable alternative employment
Protection from dismissal
Overlap with sex discrimination

25. Eversheds v De Belin [2011] IRLR 449
Caused a great deal of difficulty for employers seeking to protect pregnant staff
Salutary reminder of claim by male employee in a redundancy
Measures taken must be reasonable and proportionate

26. Eversheds v de Belin cont’d
Redundancy exercise – employer sought to ensure that pregnant employee not disadvantaged by awarding her full marks in redundancy exercise
The Claimant, a male colleague, made redundant as a result
Underhill P stated that measures taken were excessive and discriminatory

27. Commissioner of Police v Keohane [2014]
Claimant was a dog handler who handled two narcotics dogs
While pregnant one of her dogs was removed from her - her passive search dog ‘Nunki Pippin’
On her return from maternity leave NP was not re-allocated to her
Was the detriment suffered ‘because of’ pregnancy? Was test different from previous wording

28. Ill health and dismissal of a woman for pregnancy related illness
Lyons v DWP Jobcentre Plus UKEAT 0348/13
Claimant had history of depression
Involved in serious accident just before birth of her child
Immediately after birth post natal depression
End of maternity leave, commencement of annual leave prior to return to work

29. Lyons v DWP [2014]
Symptoms not abated, dismissed 6 month later -Unfair dismissal
Not discrimination because of pregnancy or maternity
Employer allowed to take into account periods of pregnancy related illness which occur outside of the protected period
Protected period ends at the end of maternity leave

30. Definition of disability
Physical or mental impairment
adverse impact on normal day to day activities
Whether substantial
Whether long term

31. Gallop v Newport City Council [2014] [2016]
The extent to which an employer can rely on OH opinion that an employee is not disabled
Decision is a management decision
Relevant up to date medical evidence showed C had been signed off sick with stress and depression by his GP
Responsible employer has duty to make own judgment
On further appeal knowledge of one department cannot be imputed to decision maker.

32. Two additional types of discrimination
Discrimination arising from disability
Failure to make reasonable adjustments

33. TIME LIMITS
Discrimination claim must be brought within 3 months beginning with date act complained of.
Tribunal may allow claim to proceed if it is ‘just and equitable’ in all the circumstances of the case to do so.
Continuous Acts – conduct extending over a period is treated as being done at the end of that period.
Omission – done when the person in question decided upon it.

34. REMEDIES Declaration of C’s Rights Recommendation Compensation
Injury to feelings
Personal injury (medical evidence required in support)
Aggravated damages
Mitigation of losses

35. Catherine Rayner Caroline Lody 7BR