The majority of the principles relevant to sex D also apply to Race D unless it states
Employers may be in breach if discriminates against a person on grounds of:
Sex or marital status
Race or ethnic origin
Trade union membership
Part time work
From Dec 2003 this list will include religion, belief and sexual orientation.
4 types of discrimination: direct, indirect harassment and victimisation, discrimination
is not, in itself unlawful, it must be accompanied by an unlawful act.
Exam Question Method
Is it an unlawful type of discrimination?
Is there an unlawful act e.g. on recruitment, terms, dismissal, subjection to a detriment? – Seek guidance from abogados de accidentes de auto
Is it direct or indirect or victimisation?
Is the employer actually or vicariously liable?
(Sex Discrimination Act 1975)
s1= women s2 = men s2A = gender re-assignment
s3 = married persons
Question to Ask:
Has the employee been treated differently and less favourably because of her
o Have to differentiate between bad behaviour and different behaviour.
If employer treats everyone badly then it may not be discriminatory.
Try comparing against someone who is in the same position as the
o There has to be causation ie because of sex, race etc.
No defence (beyond Genuine Occupational Qualification RB 145), motive
is irrelevant. GOQ covers occupations like authentic actors, male father
xmas’s etc where you are ok to discriminate.
Burden of proof – applicant to prove behaviour was because of sex, race etc.
Applicant has to prove the different behaviour, Respondent to rebut
presumptions. Court must now infer presumption of discrim if there is a hint
of it. Ask who got the job instead, someone better qualified or was it due to
sex/race ? If it was due to sex/race, the e/er is stuffed as there is no defence to
Questionnaires – filled in by applicant. If employer does not respond or takes
a log time then inferences can be drawn. Vital for employers to reply.
Time limits – have 3 months from act complained of to bring action and get
the IT1 filed. Can get extensions if continuing acts etc, may need preliminary
hearing to see if fit time limit.
Example = Ace Mini Cars – Ace refused to hire a female black cab driver
– worried about her safety at night
– ET said motive irrelevant, she was treated unfairly
– Cant have less favourable treatment
– you have to get evidence re DD as e/ers wont readily
– get historical background re qualifications, experience
to see whether applying for the job was realistic
– see how the interview went by sending a Q to the e/er
for more info
– client may be able to tell you who the other applicants
were so you may be able to speak to them