Order the Discrimination Case Law Guide in print for £99
Discrimination: A Guide to the Relevant Case Law (26th ed.)
Published in February 2013, the 26th edition of Discrimination: A Guide to the Relevant Case Law takes into account the effect on the case law of 66 employment discrimination cases reported during 2012 in Equality Law Reports and/or Industrial Relations Law Reports, including the first cases interpreting the Equality Act 2010. A major purpose of this Guide is to extract from the thousands of discrimination cases decided over the years the main principles concerning employment discrimination that still can be regarded as binding authority.
The Guide is organised according to cross-strand issues, with separate sections on particular protected characteristics focusing on principles specific to that characteristic. To take the judgments reported in 2012 into account has meant deleting 34 entries which appeared in the 25th edition of the Guide, but which are no longer considered relevant, while adding 71 new principles in light of the new case law.
The New Law Journal (7 September 2012) said: “It is a powerful tool. You have Mr Rubenstein’s help in identifying the decisions you need to look at when considering particular cases and that is something that can save a great deal of time and effort.”
The Guide is free with a subscription to Equal Opportunities Review or retails independently at £99.00.
Combine the Guide (in print) with quarterly updates (online) for £50 +VAT per annum
Discrimination: A Guide to the Relevant Case Law (e-DCLG)
NEW! The electronic edition of Discrimination: A Guide to the Relevant Case Law (e-DCLG) provides quarterly updates (January, April, July, and October) of the main principles concerning employment discrimination. The first online edition takes into account the cases reported in Equality Law Reports and Industrial Relations Law Reports in January, February and March 2013. To take these decisions into account has meant adding 37 new principles and deleting six entries which are no longer considered relevant.
The e-DCLG content can be found at www.edclg.co.uk.
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CONTENTS
Case index v
Introduction ix
1. EXCLUSIONS, EXCEPTIONS AND PRELIMINARY ISSUES 1
Meaning of “employment” 2
Claim in time 3
Extension 4
Continuing discrimination 5
Examples 5
Contracting out 6
Immunity 7
Death of claimant 7
Bankruptcy of claimant 7
Acts authorised by statute or the executive 7
Discovery and particulars 8
General principles 8
Confidential documents 9
Particulars 9
Obtaining information 10
2. DEFINITIONS OF DISCRIMINATION 11
DIRECT DISCRIMINATION 12
Burden of proof 12
Meaning of “less favourable” 12
Discriminatory treatment 12
Motive 13
Stereotypical assumptions 13
Causation 14
Statutory comparison 14
Evidence 15
Standard of proof 15
Scope of evidence 19
Vicarious discrimination 19
Associative discrimination 19
3. INDIRECT DISCRIMINATION 21
General principles 22
Provision, criterion or practice 22
Disproportionate Impact 22
Pool for comparison 22
Proportionate comparison 23
Whether particular disadvantage to claimant 23
Justifiable 23
Standard of proof 23
Tribunal discretion 24
4. HARASSMENT 25
Third-party harassment 28
5. VICTIMISATION 31
General principles 32
Standard of proof 32
Specific examples 32
6. EMPLOYER LIABILITY 35
Defence 36
Secondary liability 37
Other unlawful acts 37
Aiding unlawful acts 37
Instructing, causing or inducing contraventions 38
7. DISCRIMINATION BY EMPLOYERS AND NON-EMPLOYERS 39
Selection arrangements 40
Offer of employment 40
Detrimental treatment 40
Discrimination against contract workers 41
Discrimination by trade organisations 42
Discrimination by qualifications bodies 42
8. INDIVIDUAL REMEDIES 45
Compensation 46
General principles 46
Aggravated damages 48
Exemplary damages 48
Psychiatric injury 48
Injury to feelings 49
Unintentional indirect discrimination 51
Mitigation 51
Action recommendation 51
Remedies under EU law 51
Direct enforcement 52
Sanctions 53
Time limits 53
9. PROTECTED CHARACTERISTICS 55
AGE 56
EU age discrimination law 56
Occupational requirements 57
Measures to protect public security and health 57
Direct discrimination 58
Justification 58
General principles 58
Retirement 59
Terms and conditions 60
UK age discrimination law 61
Direct discrimination 61
Justification 61
Discrimination by employers 62
Dismissal 62
Indirect discrimination 63
Benefits based on length of service 63
Contractual redundancy scheme 63
DISABILITY 64
EU disability discrimination law 64
UK disability discrimination law 64
Meaning of disability 64
General approach 64
Meaning of impairment 64
Excluded conditions 65
Long-term effects 66
Normal day-to-day activities 66
Recurring conditions 67
Substantial adverse effect 68
Severe disfigurement 68
Effect of medical treatment 69
Progressive conditions 69
Employment discrimination 70
Direct discrimination 70
Duty to make reasonable adjustment 70
Provision, criterion or practice 71
When duty applies 71
Failure to make reasonable adjustment 73
Victimisation 74
Disability discrimination by employers 74
Dismissal 74
Remedies 74
Compensation 74
GENDER REASSIGNMENT 75
MARRIAGE AND CIVIL PARTNERSHIP 76
PREGNANCY AND MATERNITY 76
EU pregnancy and materity discrimination law 76
Pregnancy and sex discrimination 76
Pregnancy and working conditions 77
Pregnancy and dismissal 78
UK pregnancy and materity discrimination law 79
Compensation 81
RACE DISCRIMINATION 81
EU race discrimination law 81
Grounds of race 81
UK race discrimination law 81
Meaning of race 81
Vicarious discrimination 83
Segregation 83
Direct discrimination 83
Discriminatory treatment 83
Motive 84
Stereotypical assumptions 84
Statutory comparison 84
Indirect discrimination 84
Discrimination by employers 84
Promotion, transfer or training 84
Detrimental treatment 85
RELIGION OR BELIEF DISCRIMINATION 85
EU religion or belief discrimination law 85
UK religion or belief discrimination law 85
Meaning of religion or belief 85
Exclusions and exceptions 86
Occupational requirements 86
Direct discrimination 86
Statutory comparison 86
Indirect discrimination 87
Disproportionate impact 87
Justifiable 87
Harassment 87
SEX DISCRIMINATION 88
EU sex discrimination law 88
Sex as a determining factor 88
Positive action 88
Access to jobs 89
Access to training 90
Working conditions and dismissal 90
Discriminatory retirement ages 90
Indirect discrimination under EC law 90
UK sex discrimination law 92
Direct discrimination under UK law 92
Indirect discrimination 92
Disproportionate impact 92
Justifiable 92
SEXUAL ORIENTATION DISCRIMINATION 93
EU sexual orientation discrimination law 93
UK sexual orientation discrimination law 93
Organised religion 93
Direct discrimination 94
Harassment 94
10. EQUAL PAY 97
EU equal pay law 98
Claim in time 98
Same work 99
Burden of proof 99
Meaning of “pay” 100
Legislation 100
Collective agreements 101
Overtime 101
Sick pay 102
Pregnancy 102
Maternity pay 102
Parental leave 103
Time off 103
Pension schemes 104
Scope of Article 141 104
Temporal limitation 106
Admission 107
Bridging pensions 108
Notice payment 108
Redundancy payment 108
Severance pay 109
Unfair dismissal compensation 109
Travel facilities 109
UK equal pay law 109
Claim in time 109
Reference by court to tribunal 111
Choice of comparator 111
Same establishment 112
Common terms and conditions 113
Associated employers 113
LIKE WORK 114
Differences of practical importance 114
Responsibility 115
Time of work 115
WORK RATED AS EQUIVALENT 116
EQUAL VALUE 117
Scope for comparison 117
Job evaluation 117
Burden of proof 117
Work rated unequal 117
INDEPENDENT EXPERT’S REPORT 118
DEFENCES 119
Burden of proof 119
Grounds for the pay difference 121
Sex discrimination 121
Specific defences 122
Collective agreements 122
Quality of work 123
Productivity 123
Additional obligations 123
Training 123
Service payments 123
Protected pay 124
Financial constraints 125
Hours of work 125
Market forces 125
EFFECT OF THE EQUALITY CLAUSE 126
REMEDIES 128