WHAT RELIGIONS ARE DEEMED ETHNIC GROUPS (thus falling within s.9?)
SIKHS (Mandla v Dowell-Lee)
JEWS (JFS)
Pel Ltd v Modgill
If the protected characteristic is race = less favourable treatment includes segregation but not congregation, if this is the wishes of those concerned
Coleman v Attridge Law [2010]
DISCRIMINATION BY ASSOCIATION IS DIRECT DISCRIMINATION
- disabled son, mother had to take time off worth
- s.13 says “a protected characteristic” not “B’s protected characteristic”
CHEZ v Nikolova [2015]
GROCER SHOP in district mainly inhabited by Roma persons
- DD must apply in
- DD if LFT affects:
ONE = those of a certain ethnic origin OR
TWO = those who, without possessing that origin, suffer together with ONE
TYPES OF DD
discrimination by association
perceptive discrimination
deterred discrimination
Centrum v Firma Feryn [2008]
s.13 said “would” too
- if advert makes clear you WOULD treat people less favourably that is sufficient
- e.g. won’t hire Morrocans
Saunders v Richmond BC
Brennan v Dewhurst Ltd
DD = questions/statements in interviews
e.g. “are you planning on having children?” (this Q sets up inference, unless rebutted, that they are planning less favourable treatment, pregnancy discrimination is linked to sex discrimination)
Batisha v Say
Jobs not offered because they are ‘a man’s/woman’s job’ = DD
Zarczynska v Levy
DD = Dismissal
incl. dismissal in this case for refusing to obey order not to serve coloured persons in a bar (discrimination by association)
Abbey National v Formoso
WIDE DEFINITION OF DETRIMENT
woman couldn’t attend disciplinary hearing because of pregnancy related illness and was dismissed = detriment
Day v T Pickles Farms
WIDE DEFINITION OF DETRIMENT
failure to carry out risk assessment when employing women of a child-bearing age as required by reg.16 Management of H&S at work = detriment
Coyne v HO
WIDE DEFINITION OF DETRIMENT
• failure to investigate allegation of sexual harassment = detriment
Jeremiah v MOD
Detriment can exist even if employee compensated for it
employer didn’t require women to do certain dirty work because they didn’t want to shower after
MEN were required to do it (detriment) even if they are paid for it still detriment
James v Eastleigh Borough Council [1990]
BUT FOR TEST
- benign motive can be discriminatory
but for the sex/race of complainant, would s/he have been treated differently (that is, more favourably)? If yes, there has been DD
Skyrail Oceanic Ltd v Coleman
A person can discriminate directly even if he is unaware he is doing so
advantages of but for test
- avoids Q of motive
- modern discrimination is covert and unintentional (Stereotypes are engrained)
- but for means no need to show racial motive (very hard to prove exists)
- fairer for victim (who only needs to show differential treatment on basis of protected characteristic)
R v Birmingham CC ex parte EOC
Female candidates had to satisfy a higher requirement to get into the school (less places for girls in the area)
= DD
- but for test
Chief Constable v Khan [2001]
HL suggested but for is ‘too low a threshold on the complainant’
- introduced a more subjective test looking at whether R acted “honestly and reasonably”
- consider subjective intent!
Shamoon v Chief Constable
NOT INTENTION BASED TEST
2 stage test:
- less favourable treatment
- reasons why can be analysed
ET can consider subjective intent but that isn’t decisive
ULTIMATLY: OBJECTIVE CAUSATION BASED TEST
R v JFS
Benign motive defence was rejected by SC – confirmed but for test
EXCEPTION: can look at subjective intention in less obvious cases
- but only to determine motivation/ground of mistreatment to see if it is on a PC ground
- A TEST for matrilineal dissent = DD requirement on basis of race (but for not being ethnically Jewish, she would have been treated more favourably)
Amnesty International v Ahmed
SC rejected benign motive defence
- no objective justification for DD
- benign motive is not a defence
- strict causation analysis
- controversial because this case conclusion seemed unjsut
Bull v Hall [2013]
UK SC
- discrimination against person in civil partnership = DD on grounds of sexual orientation
- but for causation analysis
can’t justify on basis of religion
Wakeman v Quick Corporation
Japanese managers paid more
- not appropriate comparator
- comparator cannot be in materially different circumstances
- here they were, had to emigrate
Shamoon v Chief Constable (comparator)
Where no actual comparator exists and employment tribunal is obliged to create a hypothetical one
BUT this is qualified as hypothetical comparator must be in materially similar circumstnaces
