Managing Claims of Discrimination

Hello and welcome to this webinar, in which we're going to look at some issues surrounding the management off discrimination claims we're going to start off by considering what claims can be made and who can make them. We're then going to look at the issue of burden of proof, which has become a concern in recent times on. Then we're going to look at the questionnaire process, so let's start off by considering who can bring a claim of discrimination. A claim of discrimination is made under the equality at 2010. Employees can be made by claims could be made by an employee, but we do have to neither. The definition of an employee in the equality of 2010 is broader than that in the employment rights at 1996 where we typically turned to look for the definition of an employee or worker. Section 83 subsection two A of the Equality Act 2010 states that employment means employment under a contract of employment contract for apprenticeship or contract personally to do work on this was tested out in the case off the secretary of state, just days versus Window 2016 in this case, the claimants were professional foreign language interpreters on they were engaged as needed. Teoh Air provide interpretation services in the courts, so there was no guarantee on the amount of work that they would get. And they were just booked for specific hearings or duties as, um, when they were needed, they were not obliged to accept any work on. There was no requirement that they would be offered a minimum amount of work over the year. So in other words, there was no mutuality of obligation. They were paid according to the assignments that they did, but they didn't receive any benefits such as holiday pay and for tax purposes. They consider themselves to be self employed. The claimants brought claims of race discrimination under Part five of the Equality at 2010. On their argument. Wasat, the British sign language interpreters were receiving better terms on for their claim off race discrimination. To be able to continue the question was whether they were employees or no on. This was considered at a preliminary hearing at the employment tribunal. Initially, they lost at the employment tribunal, but then they weren't at the Employment Appeal tribunal on the case eventually ended up in the Court of Appeal on the primary argument of the respondents here was that the absence of any mutuality of obligation between consignments meant that the individuals were no on employees is defined under the quality at 2010 on. Indeed, the Court of Appeal ruled that they were no employees. There is a need to look broadly, are all factors when in the way that the individual is working when deciding whether or not somebody is on employees on in this situation, the lack of obligation between the contracts needed to be considered on is worth just reading the summary statement from Judge Underhill, where he gives the judgment of the Court of Appeal. He says It's follows. It does not follow that the absence of mutuality of obligation outside that period of the assignment may no influence or shed light on the character of the relationship within it, It seems to me a matter of common sense and common experience there. The fact that a person supplying services is only doing so on an assignment by assignment basis may tend to indicate a degree of independence or lack of subordination in the relationship. While at work, which is incompatible with the employee status, even in the extended sense under the Equality Act 2010. So let's go back to that definition again in Section 83 subsection two A of the Equality Act Employment means employment under a contract of employment, a contract of apprenticeship or a contract personally to do work. It is also important to remember that an individual who applies for a job can bring a claim of discrimination. So if an individual applies for a job on believes that that the reason that they did not get the job related in some way Teoh a protective characteristic, then they can bring a claim of discrimination. It's also important to remember the ex employees can potentially bring a claim here. It's most likely that it's going to be a claim of victimisation, that they've been treated unfavourably, either because they brought a claim of discrimination or they supported somebody who brought claim of discrimination. On the most likely argument is probably going to center around the giving of a reference. If the employer refused to give a reference to an ex employee when that employer would normally give references on the employer at the employee, argued that the reason for the refusal was because they had brought claim of discrimination. All supported somebody that had then they can claim post employment victimization just to be clear about the potential of claims that individuals can bring under the Equality Act. We're talking a direct discrimination, which is some when somebody has treated less favourably due to a protected characteristic, indirect discrimination, which is when a provisional criterion or practices applied toe all it's more difficult for a group with a particular protective characteristic. To comply is to the detriment of an individual, and it's not proportionate means of achieving a legitimate A. There is also the possibility of a perceptive discrimination claim. This is a form of direct discrimination when somebody is treated less favourably because it's perceived that they have a particular protected characteristic. Another form of direct discrimination is associative discrimination, and this is when somebody has treated less favourably because it is perceived that they have a particular when it when they associate with somebody who has a particular protected characteristic. There is also the possibility of harassment claim or a victimisation claim, as I've already mentioned and specifically with relation to disability. There's a possibility of a claim of discrimination arising from disability on as we talk about discrimination, it's important that we remember that a claim of discrimination under the equality at 2010 does have to relate to one of the protected characteristics on the protected characteristics. Are age, race, sex, disability, religion or belief, sexual orientation, a transgender status, maternity or pregnancy on marital status or civil partnership. So having explored what potential claims could be brought and will say, you could bring them, let's book now at the issue of proof. Now it's very difficult for an individual to preview that they have been discriminated against, and indeed there is no requirement to do so. In the case of Eigen versus 1 2000 and five, the words proof are used so I can, with female on, she'd recently returned from maternity leave on. Then she was selected for redundancy. Now there was nothing specific that suggested that this was a result of discrimination. But she believed that the selection of herself did relate to having female or to the fact that she'd been on maternity leave. On the Court of Appeal said that the following must be proved before the courts consensus id er a discrimination claim. The claimant was prove fact on which the tribunal could conclude that the Hezb it's been discrimination on the burden of proof, then moves to the employer to show a nondiscriminatory reason for the acts complained off on this reference to the burden of proof has been common in the management discrimination claims ever since. But the recent case of Afobe versus the Royal Mail Group 2017 has said no. There is no requirement on the claimant to prove any fax. The requirement in the claiming is to show that something has occurred which might indicate that there has been discrimination. This is a very low threshold, and once the individual has shown something that isn't quite right, that could mean that discrimination has occurred. Then the employer is required to show a nondiscriminatory reason for the facts complained off. Now let's just look to explore these further at Section 136 of the Equality at 2010 because this is where the rules with regards to this whole question of burden of proof is a set out on one section 136 says, is if there are facts from which the court could decide in the absence of any other explanation that a person a contravened the provision concerned, the court must hold that the contravention occurred. This does not apply if a shows that a did not contravene the provision. The reference to a contravention of this act includes a reference to a breach of inequality clause or rule. Now what Station 136 is saying here is know that the claimant needs to prove anything. What it's saying is that if there are facts from which the court could decide in the absence of any other explanation that has been discrimination, then the core is going to conclude that the laws discrimination. So what does this actually mean in practice? What it means is that the claimant must show that something has occurred and it could be discrimination. So, for example, a claimant might play for a job and they might not get the job. And they might say, Well, the reason is my race. Now they've got to do more than just say, this is my race and I didn't get the job. Therefore it must be race discrimination, they must be able to show you something that suggests that there might have been discrimination. So, for example, they might say, and the person that got the job was a different race to me and was less qualified, had less experience on. That suggests that race was part of the decision. Or, they might say, in this organization at that level that I was applying out In the organization there is everybody is white, British on. Yet if we look at the outside population of where this organization is based, there is quite a multi ethnic population and I'm no white British and I didn't get the job. And therefore I think that that's something wrong has occurred, and that's really the level at which the claimant has got to bring the claim. They haven't got to prove anything. Then the is she passes to the employer on. The employer has to show a nondiscriminatory reason for what's complained off. So if we come back to our example, the individual says, Well, I think it was my race on the employees is no, it was nothing to do with your race. Yes, you're well qualified, but the person that got the job had a particular qualification. That's very important. Tours or yes, you may say that if we look at the people at that level in the organisation, it's not representative of the local population. But let's look at the applicants to the job that's lurking. But the things we've done to try and promote people from other ethnic groups to apply for the job, this is what we've done. It's not been successful, we're still trying. But that doesn't mean that our decision was discriminatory. Now the reality is that in a discrimination claim on the in the employment tribunal, the claim it's going to go first and they're going to have to show this very low threshold. But the reality is that it would be rare for an employment tribunal to say no, you've not shown enough for us now. Toe asked the respondent in the respondents witnesses to take the stand to to give their side of the story for them to explain why this isn't discriminatory and in reality the employment tribunal is going to ask for for both sides of the argument before they reach a completion. Now the other thing that we want to take a moment to look at is the questionnaire process that used to be a statutory questionnaire procedure, which the individual, the potential Klayman could follow if they thought that there may be something that it's not quite right, but they didn't know for definite. So, for example, if we go back, Teoh our example that we're using off the claimant that comes along for a job, they don't get a job. They believe that it may be due to their race, maybe because of the questions that they were also, or maybe because of something that somebody said to them about the racial makeup of the organization. But they don't know. They don't know who else applied for the job. They don't know what the qualifications and the experience are of the individual that caught the job on so they don't know whether they have grounds for a discrimination claim. Now they used to be a statutory questionnaire proceed, a procedure that the claimant could follow on. What this men was that the claimant could write a series of questions. They could pass it to the employer, Andi RC employer, to respond to those questions. So in our ongoing example. It could be, well, how many people applied for the job. What was their ethnic origin? How many did you interview? What was the ethnic origin of those that you interviewed on? Maybe what was the qualifications of all the individuals on what with the qualifications of the person that got the job on the idea off the questionnaire procedure was that the claimant would then have that transparency, that information that was needed to decide whether or not they had got grounds to proceed with a claim. The employer had eight weeks to respond. There was no penalty for not responding, but the employment tribunal could take into account the refusal to respond to a questionnaire. However, the Give Woman saw this procedure as excessive on it was removed on the sixth of April 2014. However, it shouldn't be presumed that that means that questions that claimant might raise can now be ignored. A cast has published a guide that's called asking and responding to question eight questions of discrimination in the workplace to give guidance to employers as to how they should respond to questions now that the session Sri questionnaire procedure has gone Ondas start to the guide reads as follows. Issues of discrimination can be complex. A written question and answer process could be particularly helpful in establishing what has happened. Can help in trying to resolve concerns, avoiding claims and disputes. This good practice guidance explains how people searches job seekers and in please, you think that they may have been discriminated against under the Equality at 2010 could ask questions about what may have happened to them and how people or organizations such as employers that received an information request can respond appropriately. Andi, it's interesting to note that guide, because what acres goes on him and we'll look at this in a moment to say, is that an employer shouldn't pretty assume that now we don't have the question at the statutory question, a procedure that is okay. Just to say what? I'm not answering the questions, but more than that, the questionnaire process could resolve the situation, because what a CASS is saying is that it's possible that there's a misunderstanding. It's possible that the concerns could be addressed without a discrimination claim occurring on. The statement makes it clear that an employer should not presume that it's now acceptable to simply refuse to answer questions. Indeed, a cuss The guide goes on to set out six steps for the potential claimant. Follow on three steps for the employer to follow. And it says just that the question of the potential claimant one sets out the questioners on the employer's name and contact details to identify which protected characteristic is the focus of the discrimination. Three describes the alleged treatment. Four explains the type of discrimination that's allegedly been experienced. Five. Explain why the individual thinks that this treatment amounts to discrimination and six offs. Any additional questions about the alleged treatment, and then the employer should agree or disagree with the treatment that the employee or the individual is complaining about. To consider whether the treatment was justified on three respond to any other questions. Now there's a number of reasons why this process could be particularly useful. Teoh the employer If the individual, the potential claimants does as a curse suggest, And of course it is quite possible that they don't follow all these six steps, then it does allow the employer to understand exactly what it is that the claimant is concerned about. What are the protected characteristic. What is a type of discrimination? What has happened that the potential claimants sees as petanque? Potential discrimination on it could mean, therefore, that the situation is resolved without ever coming to the employment tribunal. Now, just as with the statutory procedure, the employer has got the right not to answer the questions, and there is no legal obligation at all to respond. However, a cast do nay that an employment tribunal may look at whether the respondent has answered the questions and how they have answered them as a contributory factor in making their overall decision on the question as distant discrimination claim. And so what they suggest, therefore is although we no longer have a statutory questionnaire procedure, really, once a new individual asked these questions, then really, they should be responded to. And it's also useful to remember as well that before a potential claimant can bring a claim to the employment tribunal, they will have to engage with the early Conciliation service. This is a service that's run by a cast and to engage with servant the service. The potential claimant has got to give their name and contact details. The name and contact details of the employer on then, the A cast will contact them to gain further details about the claim and to explain how the early conciliation surface operates on. The individual could say that they don't want to enter into a conciliation process with the respondent, and at that point, they've done enough to comply, and they get in early conciliation. Unique number on. They could go ahead and raise the et warm and make the claim to the employment tribunal. But a cast report that most potential claimants who engaged with the early conciliation surface do want conciliate on. Of course, when the employer is contacted, the employer can refuse to conciliate. But it could be a very useful process to gain Mawr insight into what it is that the claiming is alleging has happened. That is, discrimination on it may be worth the employer engaging with the conciliation, even for a short while, to gain that additional insight, even if they don't go on to offer a settlement or to reach a settlement on terms that the employer is happy with. So what we find in this webinar is that there is a broader range of individuals that can bring a discrimination claim than just employees on. That is because of the broader definition of employees in the equality. At 2010 we have to remember that the claimant doesn't have to prove anything. The claim. It just has to show that something happens happened that could potentially be discriminatory. And then the employer has to show a nondiscriminatory reason for what has occurred. I'm finally, although we don't have a statutory questionnaire procedure anymore, if an employer is ask questions, it would definitely be wise to consider whether it is possible toe answer those questions.