Management Service's (the employer) aim in making the change A radical Employers should ask questions to assess whether candidates have trade or professional qualifications without asking about Canadian experience or stating that Canadian experience is preferred. If Sharon feels she has been discriminated against, she will be able to bring a claim to an Employment Tribunal. produced inequities that could not be justified in the long term, Indirect discrimination is when you treat an employee the same as everybody else, but it has a negative effect on them. Banning Certain Foods. to sharing the resources available as fairly as possible. university client's premises. The definition of disability creates a gateway to the protection provided by the Disability Discrimination Act 1995 (DDA 1995). to a greater or lesser extent. extreme financial stringency imposed. Sex discrimination is a recurring problem around the world and also sexual harassment falls under the same umbrella of gender discrimination. (EAT) upheld the tribunal's decision that the employer's Indirect discrimination definition: discrimination by means of rules , regulations or procedures that may appear to be... | Meaning, pronunciation, translations and examples costs can be. I'm struggling a bit for a structure for an indirect discrimination problem question. I decided on these sources as they where the quickest and easiest to locate the information required. Indirect Discrimination Defined Discrimination cases in the U.S. revolve around the concept of a protected class, a group protected from employment discrimination by law. means of achieving a legitimate aim? Published: 7th Aug 2019. its own challenges as an approach, as employers seek to demonstrate The Court agreed with can most fairly be characterised, looking at the total picture. This also represents a significant change from earlier authorities. avoidance of costs will not, without more, amount to a legitimate impact for certain groups of employees who then bring indirect Specialist advice should be sought Discrimination takes many forms; it can come from a single person, group or event. it still just 'cost'? If a manager helps an employee to balance their work and home life this can be rewarded by increased loyalty and commitment. Info: 2243 words (9 pages) Law Essay So what impact has the decision in the Malcolm case affected the effectiveness of the DDA 1995? required by a 'costs plus' approach. freeze. Free Practical Law trial. its books can constitute a legitimate aim for the purpose of a "Indirect discrimination (or disparate impact) concerns the application of the same rule to everyone, even though that rule significantly disadvantages one particular group in society. Other important questions about indirect discrimination concern responsibility in a morally thicker sense, which I shall call “responsibility as culpability.” Even if we accept that both direct and indirect discrimination wrong people by failing to treat them as equals, and … Indirect discrimination is applying a requirement or condition which appears to be non racial, but which creates a greater obstruction for, members of one racial group than another to their disadvantage, and which requirement or condition cannot be justified. In the case of the dismissal of a long-term absentee, the question would be whether the employer would have dismissed a non-disabled person who was also absent from work. Do you have a 2:1 degree or higher? is a proportionate way of achieving a legitimate aim. A rough answer says that indirect discrimination occurs whenever an act imposes a disproportionate burden on a group of people, where this does not involve any bias or … If, as in that ruling, the DDA is interpreted to provide protection for those associated with a disability, employers may face claims of disability discrimination where they, for example, reject flexible working requests by employees who are primary carers of disabled individuals. Indirect AI discrimination. In Essop v Home Office (UK Border Agency) and Naeem v The Secretary of State for Justice, the Supreme Court has held that a claimant does not need to demonstrate why the relevant provision places them at a … Questions about "Canadian experience" sometimes pose particular problems for recent immigrants, and may have an adverse impact on persons based on their place of origin, ethnic origin or race. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. CK will want pool in which the proportion of the complainant’s sex who suffers a disadvantage is small, whereas Sharon will want to choose a pool in which the proportion of the complainant’s sex who suffers a disadvantage is higher. In Child Support Agency v. Truman and Stockton on Tees Borough Council v. Aylott, the Employment Appeal Tribunal over-turned employment tribunal decisions which applied the pre-Malcolm comparator test. discriminatory treatment solely because to eliminate such treatment Copyright © 2003 - 2021 - LawTeacher is a trading name of All Answers Ltd, a company registered in England and Wales. VAT Registration No: 842417633. Customs And Trade Post-Brexit ThinkHouse Spring Seminar 2021, Lifecycle Of A Smart Idea | Commercializing Artificial Intelligence: Strategies For The Next Era Of Invention, Human Rights And Companies ThinkHouse Spring Seminar 2021, ThinkHouse Foundations Spring Virtual Seminar 2021, Discrimination, Disability & Sexual Harassment, Episode 205 – A View From Mayer Brown - Splitting Employment Contracts On A TUPE Transfer And Disciplinary Action Against An Employee For Refusing To Wear A Face Mask, Bullying In The Workplace - How To Deal With Bullying Managers. the earlier judgment of the Court of Appeal in Woodcock v the allocation of resources was a legitimate aim. Now, that probably sounds like a good thing. Ever since its recognition by the Supreme Court of the United States in 1971, liberal democracies around the world have grappled with the puzzle that it can sometimes be unfair and wrong to treat everyone equally. This may be as a result of a certain practice, policy or rule that applies to everyone in the same way, but has a detrimental effect on you because of a … As ever, the key is to consider whether the Can that be said to be that Indirect discrimination happens when there is a policy that applies in the same way for everybody but disadvantages a group of people who share a protected characteristic, and you are disadvantaged as part of this group. c) Treating someone less well than someone else because of a protected characteristic. A landlord won’t rent an apartment to a person because they prefer to rent to someone of their own ethnic background. Problem Questions 1. in order to objectively justify otherwise discriminatory In some cases, discrimination may be direct and intentional (for example, if a person or group treats another person differently on purpose because of a Code ground). The employee or applicant must be able to prove both of the following about the rule or arrangement: Discrimination Law- Take home exam Question 1 Due to medical problems associated with her pregnancy, Astrid needs to take an unpaid two weeks off work. In this episode, Chris Fisher and Miriam Bruce look at the recent cases of McTear v Amey on when an employee's contract can be split in two on a TUPE... Of all the problems the workplace dynamic can present, bullying can be one of the most difficult to deal with. In both cases, the EAT followed the House of Lords’ decision in Malcolm and ruled that the correct comparator for disability related discrimination claims in employment is the same as for direct discrimination. I felt the search was very successful there is a great deal of information on both the legal databases and the internet regarding the judgement of the case and the effect on the DDA. Ask a question Indirect discrimination. The Court has held that although saving or avoiding cost cannot alone justify indirect discrimination, an employer's need to reduce expenditure, including staff costs, in response to financial constraints can constitute a legitimate aim for the purposes of the justification test. T The indirect discrimination provisions are aimed to tackle ”disguised age barriers” rather than barriers stemming from retirement. However, this necessitates much more so-called 'costs plus' approach) may do so. impermissibly to place reliance solely on cost. not seek to justify those measures on the basis that they Read the original article on GowlingWLG.com. 'plus' factor justifying indirect age discrimination or is oblige it to reduce its costs? As set out in the Equality Act 2010, a prospective or actual employee is directly discriminated against by another person if they treat the individual less favourably than they treat others because of a protected characteristic. As the comparator test for direct and disability-related discrimination is now so similar, if the evidence exists to show difference in treatment the applicant will choose to bring a claim for direct discrimination in preference to one for disability-related discrimination. Main issue - Context- employment, education, recruitment, exercise of public function) - What is the actual tort (unlawful conduct) – (indirect discrimination, direct discrimination… subtlety than the approach sometimes (wrongly) assumed to be Indirect discrimination, on the other hand, is much more common and much harder to prevent, because it occurs as a byproduct of non-sensitive attributes that happen to strongly correlate with those sensitive attributes.This type of AI discrimination happens to even the most well-intentioned recruiters. make decisions on cost saving grounds which result in an adverse discrimination claims. A distinction can incorrect, but considered that it sometimes acts as too convenient Firstly, deciding which cases to research and the cases which have been affected by the decision in Lewisham V. Malcolm. By using our website you agree to our use of cookies as set out in our Privacy Policy. Accordingly, and since disability must have played some part in the decision-making process for there to be disability-related discrimination, Malcolm’s claim was bound to fail. In the first round, applicants need to sit a situational judgment test. was the need to observe the constraints of the Treasury imposed pay The employer had indicated in Secondly, I had to research the impact of the decision of Lewisham v. Malcolm and the effectiveness of the DDA 1995 afterwards. Banning particular foods in the office kitchen can be done for a number of … As the Court states, "the distinction 50. To export a reference to this article please select a referencing stye below: If you are the original writer of this essay and no longer wish to have your work published on LawTeacher.net then please: Our academic writing and marking services can help you! between cases where the aim was "cost-cutting" and cases However, they held that the reason the council was seeking possession of the flat was a housing management decision which had nothing to do with Malcolm’s disability. The employment tribunal found that the new policy was prima Instead, establishing a "solely" to avoid costs. Lewisham then appealed to the House of Lords. Accordingly, the saving or The key elements in establishing indirect discrimination are contained in s 1(2)(b) of the Sex Discriminations Act 1975. The UK’s highest court has given an important judgment concerning claims for indirect discrimination. Once the existence of a ‘provision, criterion or practice’ has been established, the complainant must show that the provision etc. be drawn between the absence of means and an employer seeking The requirement for working shifts 8am-4pm and the second from 12noon until 8pm, although appearing to apply to both sexes equally, is likely to have an effect on more females than males and so would put females at a particular disadvantage when compared to men. Related Content. The correct approach is to compare the treatment of the disabled employee or job applicant with that of non-disabled person who is otherwise in the same circumstances. treatment. A subtle but very important difference. Which is good, but does require you to read an awful lot of information that is not relevant and there is time consuming. The law which says you mustn’t be discriminated against is called the Equality Act 2010. Registered office: Venture House, Cross Street, Arnold, Nottingham, Nottinghamshire, NG5 7PJ. avoiding cost cannot alone justify indirect discrimination, an This is the question the Court of represented a proportionate short-term means of responding to the d) Having a policy or practice which is more difficult for people of a particular protected characteristic to comply with. legitimate, the Court has confirmed that an employer's need, as Justice. Free, unlimited access to more than half a million articles (one-article limit removed) from the diverse perspectives of 5,000 leading law, accountancy and advisory firms, Articles tailored to your interests and optional alerts about important changes, Receive priority invitations to relevant webinars and events. Sharon would first have to establish the prima facie case of unlawful discrimination, and then the onus moves to the employer to demonstrate a defence. The concept of indirect discrimination has been around for over 40 years yet it is still spawning case law. Mr Heskett appealed to the Court of Appeal on the ground that was stated to be a way of dealing with reduced financial means. objective itself. To summarise - indirect discrimination involves the application of an apparently neutral rule and the disparate impact this has on a person because of their sex or race or other protected characteristic, i.e. that almost any decision by an employer will have regard to costs, It occurs when a particular group of people is put at a disadvantage by company policies or practice which applies to everyone. Company Registration No: 4964706. In Malcolm, the correct comparator would have been a non-disabled tenant who had also illegally sublet. The council sought a possession order after Malcolm sublet the flat without obtaining their consent. For Sharon Edwards to claim under the SDA 1975 she would have to demonstrate that the provision, criterion or practice has put her, or would put her, at a particular disadvantage. However, following Malcolm, the employer may be able to justify the rejection if it can demonstrate that a request by an employee who was a primary carer of a non-disabled individual would also have been rejected. is a proportionate way of achieving a legitimate … This was rejected by the GLS, who sai… The DDA 1995 has been heavily amended by the Disability Discrimination Act 1995 (Amendment) Regulation 1996 define ‘disability’ as the following, a physical or mental impairment which has an adverse ability to carry out normal day-to-day activities (law Hospital NHS Trust v Rush [2001]). rather than avoiding increased costs (which is not); in many cases facie age discriminatory, in that it favoured employees aged over This means you can take action in the civil courts.Indirect discrimination is when there’ Appeal has now considered in Heskett v Secretary of State for Many legal commentators point out that the 'costs plus' "find the other factor". But was the introduction of the new policy a proportionate On appeal, the Court of Appeal held that there had been a causal connection, and in the absence of a valid justification defence, the council’s proceedings for possession of the premises were unlawful. Looking for a flexible role? The last few months have seen many announcements in relation to changes expected in the employment law arena. and have taken time to implement, and the employer was operating On a separate point in this case, the tribunal noted that the Malcolm alleged that in seeking to evict him, the council was discriminating against him by treating him less favourably for a reason that related to his disability. about your specific circumstances. Indirect discrimination also recognises that substantive inequalities might be justified and that a balancing act is required between the needs of the putative discriminator (usually an employer) to apply separating rules and the discriminatory effects which the application of such rules create. What is indirect discrimination? I started by searching the Westlaw legal database, I began by searching for the Lewisham v. Malcolm 2008 and any cases that the decision impacted. Take a look at some weird laws from around the world! The tribunal therefore found that although the PCP the constraints under which an employer is having to operate. the distinction between 'cost' and an 'absence of X is a Catholic and wears a cross and is upset by this and refuses to remove it, … It could also present Since the decision in Malcolm there have been several cases where that decision has influenced cases. expenditure, and specifically its staff costs, in order to balance Before any assessment of the impact of the provision can be carried out, the appropriate pool for comparison must be identified. This is the question the Court of Appeal has now considered in Heskett v Secretary of State for Justice. So how far has the decision in the Malcolm case weakened the protection afforded to disabled people? in this case, to reduce its expenditure or constrain its staffing View examples of our professional work here. Sign Up for our free News Alerts - All the latest articles on your chosen topics condensed into a free bi-weekly email. The House of Lords upheld the appeal, dismissing Malcolm’s claim. aim when an employer is attempting to defend itself against a claim Is an 'absence of financial means' capable of being the and stressing the need to look at the employer's aim in a more As a result, both sides will want to choose a pool which favours their case. The choice of pool is important because, once the appropriate pool has been ascertained; the tribunal must consider whether the provision etc. That is particularly so where the problem in question. The Court cautions against an artificial game of means' was not a valid distinction. Malcolm v Lewisham LBC also established that in cases of disability-related discrimination, it is necessary for an organisation or individual to have an actual or imputed knowledge of the disability in order to discriminate, unless the act complained of its inherently discriminatory. The main facts of the case were that Mr Malcolm, who suffered from schizophrenia, was the tenant of a flat owned by Lewisham Borough Council. The tribunal must compare the proportion of women within the pool who suffer a disadvantage with the proportion of men within the pool who will suffer a disadvantage. Indirect discrimination is unlawful if the discrimination is based on certain attributes protected by law, such as a person’s race, sex, pregnancy, marital or relationship status, breastfeeding, age, disability, sexual orientation, gender identity or intersex status. entitled to find that the PCP (the policy change) was a The decision will be helpful for employers who are forced to All job applicants applying for a legal training contract at the Government Legal Services (GLS) are required to undertake psychometric testing as part of its recruitment practices. Examples of how Sharon could demonstrate that Custom Kitchens have put her and other female colleagues at a disadvantage include, the numbers of women and men who can comply with the provision if the disparity is large (significant) such as the case of London Underground Ltd v. Edwards (No.2) [1998] IRLR 364, London Underground imposed a requirement to work flexible hours. involved may sometimes be subtle...but it is real". The Malcolm test simply requires that disabled employees are not the only ones subject to a particular rule or practice. Before any decision regarding a change of hours should be made CK should really discuss the impact with all employees. In introducing flex-time it will allow employees to adjust their start and finish times but still provide adequate cover. The Lords accepted that, but for his schizophrenia, Malcolm would probably not have sublet the flat. The Lords also held that an employer or service provider must know, or ought reasonably to know, about the disability before a finding of disability discrimination could be made. The Court of Appeal has taken a pragmatic approach, recognising The court at first instance agreed with Lewisham holding that there was no causal link between the subletting of the flat and Malcolm’s schizophrenia. aim it can it be said to be solely to avoid This completely turns around the test established by the Court of Appeal in Clark v Novacold and makes it much harder for disabled employees to successfully bring claims. There is no principled basis for ignoring Free resources to assist you with your legal studies! "solely to avoid increased costs"? Protected classes include categories such as race, sex and age as well as less obvious ones such as religion, national origin, or disability. legitimate aim, taking into account the disparate impact on the in response to financial constraints can constitute a legitimate S.1 of DDA 1995 is very complex and has a huge amount of case law. Logical structure - Use the question to get structure - Use heading 3. Cost-saving alone without regard to An employee may feel more able to focus on their work and to develop their career. But the most likely and effective way to address the gap left by the judgement is through the introduction of new legislation, namely the Equality Bill. b) Indirect discrimination against someone. Almost any decision taken by an employer will have regard to costs Instead, the total picture needs to be considered. The Employment Appeal Tribunal Indirect discrimination can happen when there are rules or arrangements that apply to a group of employees or job applicants, but in practice are less fair to a certain protected characteristic. In the case of disability-related discrimination a similar comparative exercise is required following the House of Lords ruling in Malcolm v. Lewisham LBC [2008] UKHL 43, [2008] IRLR 700. Discrimination can take many forms. Employees who work flexibly often have a greater sense of responsibility, ownership and control of their working life. All Rights Reserved. other factors or aims does not justify a discriminatory provision, discriminatory payment to A of less than B simply because it would their aim is due to an absence of means (which can be legitimate) temporary. Mondaq uses cookies on this website. We need this to enable us to match you with other users from the same organisation, it is also part of the information that we share to our content providers ("Contributors") who contribute Content for free for your use. Registered Data Controller No: Z1821391. The latter type of discrimination, because of its more hidden nature, is the most difficult to tackle. In order for Sharon to succeed in her case she will need to choose a pool in which the proportion of the complainant’s sex who suffers a disadvantage is higher. Applying the above, can the 'plus' factor consist of the Miss Brookes, the job applicant, had Asperger’s syndrome and requested to answer the questions in a short narrative, rather than the required multiple choice. Indirect disability discrimination is unlawful unless the organisation or employer is able to show that there is a good reason for the policy and it is proportionate. To conclude the impact on the effectiveness of the DDA 1995 since the Malcolm case is that lower courts will almost certainly apply to the Malcolm comparator test in all parts of the DDA and not just to the premises provisions. The Therefore, to conclude Sharon Edwards may have a claim for indirect discrimination under S1 (1) (b) SDA 1975. increased costs. Indirect discrimination will occur where an employer imposes a provision, criterion or practice which applies to all employees, which puts persons of the complainants sex at a particular disadvantage when compared to members of the opposite sex and the provision is also to the complainants disadvantage, and the employer cannot show that the provision etc. Employers will still need to comply with the duty to make reasonable adjustments under the Disability Discrimination Act (DDA) before deciding to dismiss a disabled employee on the grounds of absence and this case should not be seen as a green light to ignoring obligations towards disabled employees.
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