equality law round up 2014 claudia bennett senior solicitor 1
TRANSCRIPT
Equality Quiz
Slide Number 2
1.How many people in Scotland have a disability?
2. What percentage of people are born with their disability?
3. Women still earn 5% less than men for work of equal value. Yes/No
• The Equality Act
• Recent case law in relation to:oProtected characteristicsoProhibited conduct
• The EHRC
• Our legal strategy
• Contact us
What we will cover
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Age (s.5)
• Where the Act refers to the protected characteristic of age it means a person belonging to a particular age group.
• An age group includes persons of the same age and people of a particular range of ages
• Only protected characteristic which allows direct discrimination to be justified.
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Age
McCririck v Channel 4 (application of Seldon)
Age discrimination but C4’s drive for a wider audience for horse racing justified his dismissal
Age
• Lockwood v Department for Work and Pensions [2013]EqLR 1190 CA
• Specht v Land Berlin
Slide Number 6
Disability (s.6)
• A person has a disability for the purposes of the Act if he or she: —
- has a physical or mental impairment, and
- the impairment has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities.
• Schedule 1 and Regulations on meaning of disability
• Interpretation in line with UNCRPD
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Disability (s.6)
Knowledge
• Gallop v Newport City Council [2013] o Employer needs to have knowledge of certain factso NCC could not rely on unreasoned assertions by adviser
about what was really a legal question = an employer cannot ‘rubber stamp’ a health adviser’s opinion
• McCubbin v Perth and Kinross Council [2013] EAT
Slide Number 8
Prohibited conduct
• Direct discrimination (s 13)• Indirect discrimination (s 19)• Harassment (s 26)• Victimisation (s 27)• Disability only:
• Discrimination arising from disability (s 15)• Duty to make reasonable adjustments (ss 20
& 21)
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Direct discrimination
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
• Preddy & Hall v Mr and Mrs Bull
• Discrimination by association or perception included
• Direct discrimination can never be justified however age discrimination remains justifiable
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Indirect discrimination• A applies a provision, criterion or practice (PCP) to B • A applies, or would apply, the PCP to persons with whom
B does not share the relevant protected characteristic • the PCP 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 the characteristic
• the PCP puts, or would put, B at that disadvantage and • the PCP is not a proportionate means of achieving a
legitimate aim. • Azmi v Kirklees Metropolitan Borough Council
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Association and perception
Discrimination by association• Less favourable treatment because associated
with someone with a PC • Does not need to be permanent• Mr and Mrs Gyenes v Highland Welcome (UK) Ltd• Peaden v Methodist Church
Discrimination by perception• Less favourable treatment because perceived to
have a PC
Slide Number 13
Victimisation
‘A person (A) victimises another person (B) if A subjects B to a detriment because (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.’
Removes the need for the tribunal to construct an appropriate comparator. •Rowstock Ltd v Jessemey [2013] IRLR439 •Onu v Akwiwu [2013] EqLR577; [2013 IRLR523
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Harassment
• a person (A) harasses another (B) if A engages in unwanted conduct ‘related to a relevant protected characteristic’ which has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
• Case example: Wijesundera v Heathrow 3PL Logistics Ltd and Another UKEAT/0222/13
Slide Number 15
Reasonable adjustments
• Where a disabled person is placed at a substantial disadvantage to non-disabled people, there is a duty to make changes to:
1. Provisions, criteria or practices
2. Physical features
3. And a duty to provide auxiliary aids and services (such as a hearing loop or a special computer service)
Johnson v Topshop/Topman Ltd [2014] EqLR 480
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The Commission’s powers
• Intervene in Commission’s name (s30) [equality or human rights or both]
• Judicial Review proceedings in Commission’s name (s30) [equality or human rights or both]
• Provide legal assistance to an individual bringing proceedings under the EA (s28) [equality or both, but not human rights alone]
• Also other enforcement powers eg inquiries, investigations
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EHRC strategic priorities for using litigation powers
• Consultation on Commission’s Strategic Litigation Strategy
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Further information
EHRC website information on Equality Act http://www.equalityhumanrights.com/legal-and-policy/equality-act/
Law Society of Scotland
http://www.lawscot.org.uk/about-us/equality-and-diversity
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The Commission’s legal team in Scotland
• Legal Team Bulletin:www.equalityhumanrights.com/scotland/legal-news-in-
scotland/equality-law-bulletin/• Requests for assistance:• [email protected]
Tel: Claudia Bennett 0141 228 5965Email: [email protected]
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