Download Indirect discrimination

DISCRIMINATION
THIRD-YEAR LAW| CLASS 5
DISCRIMINATION

Protected characteristics: disability, race, religion, belief, sex, sexual
orientation, gender reassignment, age, pregnancy, maternity, marriage
and civil partnership.

Direct discrimination: less favorable treatment because of a protected
characteristic. Includes discrimination based on association and
perception.

Indirect discrimination: an organization or policy that applies to
everyone, but that puts someone with a protected characteristic at an
unfair advantage.

Harassment: unwanted conduct which has the purpose or effect of
violating a person’s dignity or creating an intimidating, hostile,
degrading, humiliating or offensive environment. May be a one-off
incident. Conduct related to a protected characteristic.

Victimization: the unfair treatment of someone
complained about discrimination or harassment.
because
they
THE EQUALITY ACT 2010 AND CIVIL
CLAIMS

The UK does not have a written Constitution, so legislation is the
primary tool to establish anti-discrimination protections.

The unfair treatment must have been motivated by the victim’s
characteristics at work or during the provision of public, private or
free services.

The Equality and Human Rights Commission overviews the correct
application of the Act, assists in legal proceedings, encourages antidiscrimination initiatives.

Tribunals can make recommendations that benefit the whole
workforce.
Sentence Completion
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1. Pursuant to the Equality Act 2010, individuals are protected from acts
of direct and indirect discrimination, from acts of harassment and from
acts of victimization.

2. While indirect discrimination refers to organization which applies to
everyone but places someone with a characteristic at an unfair
disadvantage, direct discrimination refers to the less favorable
treatment of a person with a protected characteristic.

3. Discrimination claims are dealt with in civil courts such as county
courts or the High Court, or in a special court such as the Employment
Tribunal.

4. If the defendant is found liable in a discrimination case, he/she may
have to pay compensation to the claimant and the claimant’s feelings
will be taken into consideration by the judge when awarding damages.

5. As well as the provisions of the ECHR which are incorporated into the
Human Rights Act and therefore are applicable in the UK, individuals
are protected by the Equality Act 2010 which encapsulates all antidiscrimination protections.
Case Studies

Sandy can claim under UK discrimination law. Her behavior is in
breach of her contract of employment: working hours are a
contractual term (an essential element of the contract), the breach
of which can entitle the employer to cancel the contract. However,
on account of her disabilities, she cannot be discriminated against.
Her employer should not lay her off unless (s)he has an economic
defense. (s)he could argue that Sandy’s disability is seriously
affecting his/her business etc.

When faced with a disabled employee, the employer is expected
to make reasonable adjustments. The employer’s actions can be
likened to indirect discrimination, unless (s)he can prove that the
change in working schedule is essential to his/her business. His/her
defense is all the less likely to be successful if the employer is not
willing to make any reasonable adjustments to help his/her
employee work in his new environment.
Case Studies (2)

Passing someone over for a promotion is a case for discrimination. The employer
will only succeed if he/she manages to show that his/her choice not to select
the disabled employee was motivated by other reasons than his disability.

The Equality Act 2010 makes special provisions for breastfeeding mothers. The
manager would not be allowed to ask Tamara to stop breastfeeding in public,
change places or leave the premises. It is very unlikely the economic defense
will succeed.

Justicia has a claim under the Equality Act 2010 as the protections of the act
are afforded to disabled persons. Anika can also claim as a carer, as she takes
care of her disabled sister. It is very unlikely the economic defense will succeed.

As long as the club has more than 25 members, it must comply with the
obligations imposed by the act. Julio can claim, since he is a club member who
is treated unfairly because of his association with a discriminated group
(transsexuals). It is very unlikely the economic defense will succeed.
Text 2. “Firearms officer wins case against
Cleveland police over racism”

English Defence League: a far-right street protest movement which focuses on opposition to
what it considers to be a spread of Islamism and Sharia in the United Kingdom. They are noted
for their invasion of mosques and protests in predominantly Muslim areas of the UK.

Holster: a holder for carrying a handgun or other firearms, typically made of leather and worn
on a belt or under the arm.

a VIP close protection officer: a policeman who works as a bodyguard protecting VIPs.
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unfairly treated: discriminated against.

hearsay: the report of another person's words by a witness, which is usually disallowed as
evidence in a court of law.

bullying: use of superior strength or influence to intimidate someone, typically to force them to
do something.

a personal development plan: it enables learners to identify key areas of learning and
development activity that will enable them to either acquire new or develop existing skills and
behavioral attributes.

long-running: having continued for a long time.

findings: decision.

“stitched up”: to incriminate someone on a false charge by manufacturing evidence.
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remedy hearing: court hearing where the amount of compensation is decided by the judge.
Text 3: “Woman awarded £184k in
'first caste discrimination' case”
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1. Explain the facts of the case. The Claimant, Ms. Tirkey, brought a number of claims
relating to her period of employment by the Respondents between 2008 and 2012.
These claims included ones for unpaid wages and discrimination on grounds of race
and religion. The Claimant was born in India and described herself as being of the
“servant class” and “low caste”. Ms. Tirkey was recruited by the Respondents in India
in 2008 to work as a domestic worker in the UK. Until November 2012, when she
resigned due to fundamental breaches of her contract, the Claimant worked for the
Respondents as a live-in domestic worker, with responsibility for childcare and
domestic chores, such as cooking and cleaning. During this time she worked seven
days a week, 18 hours a day and was in effect “on call” 24 hours a day. She was
paid as little as 11p per hour, which was paid into a bank account set up for her by
the Respondents, but which she did not have access to. In addition, the money in
this account was frequently used by the Respondents for their own purposes. At all
times, the Claimant did not have a bed and slept on a foam mattress on the floor in
various bedrooms in the house (though never in her own private bedroom). The
Claimant’s passport and other documents were kept from her by the Respondents.
In addition, the Claimant was not permitted to bring her Bible to the UK and her work
patterns meant she was unable to attend Church.
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2. What did the employment tribunal hold, and why? The Employment Tribunal found in
favor of the Claimant on multiple counts. A number of violations of the Claimant’s
employment rights were upheld, including that there had been a failure to provide terms
and conditions of employment, that pay slips had not been provided, that the Claimant
was not paid the National Minimum Wage, and that the Claimant did not receive rest time
or annual leave. In addition, the Employment Tribunal found that the Claimant had been
the victim of harassment on the ground of her race in a number of situations during her
employment. Further, there had been unlawful indirect discrimination on the ground of
religion. The Employment Tribunal ordered that the Respondents pay the Claimant
£183,773.53, a sum representing unlawful deductions from wages.

On 4 December 2015 the Employment Tribunal handed down its remedy judgment
concerning Mrs. Tirkey’s claims for injury to feelings, personal injury and financial losses.
The Tribunal made an award of £35,000 for injury to feelings, which is thought to be one of
the largest awards for non-pecuniary losses. This was comprised of an award of £27,500 for
direct race discrimination and a distinct award of £7,500 for indirect religious discrimination.
A separate personal injury award for £13,500 was also made for the psychiatric injury
sustained by Mrs. Tirkey as a result of her treatment by the Chandhoks. The Tribunal made
an award of aggravated damages of £7,500 on the basis that the Respondents’ defense of
the claim had involved “cynical and deliberate” fabrications to the High Commission in
India and the UK authorities about the renewal of visas. Further, the Respondents had
consistently disregarded the Tribunal’s Orders for disclosure. The Tribunal also expressed
“deep concern” that the Second Respondent had made statements to the local press two
weeks after its liability judgment, maintaining allegations that the Tribunal had found to be
false. In total, Mrs. Tirkey was awarded £83,762.61, in addition to the £183,773.53 previously
awarded for her National Minimum Wage claim.
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3. Research the status of caste-based discrimination in UK law. This judgment was in fact
the second time the case had been before the Employment Tribunal. In the first decision
of the Employment Tribunal, handed down on 24 January 2014, the Tribunal considered
a request by the Respondents to strike out part of the claim. The claim had been
amended to explicitly reference discrimination based on “caste”, in addition to
discrimination on grounds of race and religion and it was argued that this aspect must
be struck out, as, inter alia, the Equality Act 2010 did not provide protection against
discrimination on grounds of “caste”. Employment Judge Stigworth found that the
protected characteristic of race included ethnic origin, which was broad enough to
encompass caste. The Respondents appealed on this point, but the Employment
Appeals Tribunal (EAT) upheld the earlier decision, confirming that “caste”, in as much as
it is an aspect of “ethnic origin”, could fall within the scope of the Equality Act 2010. The
EAT did not recognise “caste” as a free-standing ground of discrimination, but rather
recognized that aspects of the category “caste” overlapped with the definition of
“ethnic origin”. Therefore certain instances of alleged discrimination which raised “caste
considerations” could fall within the scope of “ethnic or national origins” in Section
9(1)(c) of the Equality Act 2010.2 Following this EAT decision on the law, the case was
returned to the Employment Tribunal for an evaluation of the facts. Caste discrimination
is not expressly prohibited under UK equality legislation, although section 9 of the
Equality Act 2010 requires the Government to introduce secondary legislation to make
caste an aspect of race, thereby making caste discrimination a form of race
discrimination. The previous Coalition Government initially indicated that this legislation
would be introduced to Parliament during summer 2015. The current Conservative
Government is reviewing its position on the need to introduce legislation, following the
Employment Appeal Tribunal’s decision in Chandhok & Anor v Tirkey. Estimates of the size
of the low caste population in Britain vary between 50,000 and 200,000 or more.
Taiwo (Appellant) v Olaigbe and another
(Respondents); Onu (Appellant) v Akwiwu and
another (Respondents) [2016]
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1. Present the legal question before the Supreme Court. The issue in
this case is whether the conduct complained of amounts to
discrimination on grounds of race. In the 2010 Equality Act, the
definition of race also covered nationality and ethnic or national
origins. In the two cases before the court, the employment tribunals
both found that the reason for the employers’ mistreatment of their
employees was their victims’ vulnerability owing to their precarious
immigration status. The principal question for the court is therefore
whether discrimination because of, or on grounds of, immigration
status amounts to discrimination because of, or on grounds of,
nationality. The subsidiary question is whether the employers’
conduct amounted to indirect discrimination against persons who
shared that nationality.
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2. Explain the reasoning behind the Supreme Court’s decision. Both
appellants brought successful claims; Ms Taiwo was awarded £30,458.85
under the National Minimum Wage Regulations, £1,520 for failure to
provide written particulars of her contract of employment, and £1,250
for failing to provide rest periods. Ms Onu was awarded £11,166.16 for
unfair dismissal, including the failure to provide a statement of terms
and condition; £43,541.06 for unpaid wages; £1,266.72 for unpaid
holiday; and £25,000 for injury to feelings and £5,000 aggravated
damages.

However, the Supreme Court disagreed with the claims for
compensation under the Equality Act. Those were not cases of direct
discrimination: the mistreatment was due to the appellants’ vulnerable
migrant status, not their nationality. It was not indirect discrimination,
because there was no discriminatory ‘provision, criterion or practice’
applied by the employers to their employees. The employers too were
nonnationals, but they were not vulnerable in the same way. The
reason why these employees were treated so badly was their particular
vulnerability arising, at least in part, from their particular immigration
status.

3. How are migrant workers protected in the UK? Should Parliament
extend those protections? The mistreatment of migrant domestic
workers by employers who exploit their employees’ vulnerable situation
is clearly wrong. The law recognises this in several ways. Depending on
the form which the mistreatment takes, it may well amount to a breach
of the worker’s contract of employment or other employment rights. It
may also amount to a tort. It may even amount to the offence of
slavery or servitude or forced or compulsory labor under section 1 of
the Modern Slavery Act 2015 or of human trafficking under section 2 of
that Act.
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However, remedies under the law of contract or tort do not provide
compensation for the humiliation, fear and severe distress which such
mistreatment can cause. Such a remedy could be found if the
employer’s conduct amounts to race discrimination under the Equality
Act 2010. This would have the added advantage that proceedings for
the statutory tort of race discrimination can be brought in an
employment tribunal, at the same time as proceedings for unpaid
wages and other breaches of the contract of employment and for
unfair dismissal. Baroness Hale suggested that Parliament might consider
whether employment tribunals ought to be given jurisdiction to award
compensation under section 8 of the Modern Slavery Act to grant
recompense for ill-treatment to vulnerable migrant workers.
Homework for next class
Human Rights in the UK
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Read the lesson in the Glossaire: chapters 57, 58, 59 and 60.
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Complete the Comprehension of the Facts exercises ps. 60-62 (for
exercise B, only complete the first 5 sentences).
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Suggested presentation topics: Texts 2, 3 and 4.