Identifying the provision, criterion or practice which puts a group at a particular disadvantage under s.19 Equality Act 2010. Essop v Home Office; Ishola v Transport for London.
Indirect sex discrimination; part-time workers; judicial notice. IDS cites the EAT's decision as an instance, in an indirect sex discrimination claim, of judicial notice being taken that a higher proportion of women than men work part time. IDS adds that the willingness of the courts to dispense with formal proof of general facts of that kind is commonplace where the PCP has been applied to a large pool, such as the workforce as a whole. [Summary checked against a practitioner text, not the judgment.]
Indirect discrimination; equal pay; objective justification; Article 119 EEC. An occupational pension scheme based on an agreement between employer and staff committee, financed entirely by the employer and forming part of the contracts of employment, is not a statutory social security scheme: benefits under it are pay within Article 119 [20]-[22]. Excluding part-time employees from the scheme infringes Article 119 where the exclusion affects a far greater number of women than men, unless the employer shows that it is based on objectively justified factors unrelated to any discrimination on grounds of sex [31]. Whether the grounds are objectively justified is for the national court: the measures must correspond to a real need on the part of the undertaking, be appropriate with a view to achieving the objective pursued and be necessary to that end [36]-[37]. Article 119 does not require an employer to organise its pension scheme to take account of the difficulties of employees with family responsibilities [42]-[43].
Discrimination; justification; the tribunal must perform a critical evaluation of the employer's reasons, not just accept them.
“The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary.”Pill LJ, at [32]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Indirect discrimination; the claimant need not prove why a PCP puts their group at a disadvantage, only that it does .
“Direct discrimination expressly requires a causal link between the less favourable treatment and the protected characteristic. Indirect discrimination does not. Instead it requires a causal link between the PCP and the particular disadvantage suffered by the group and the individual.”Lady Hale, at [25]
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Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Indirect discrimination; group disadvantage; judicial notice. The EAT (Choudhury P) held that group disadvantage can be established in several ways: by statistical or other tangible evidence, by inference from particular disadvantage in the individual case, by the disadvantage being inherent in the PCP, or by matters of which judicial notice should be taken. The absence of statistical evidence should not usually lead to the claim being rejected at the outset. The tribunal erred in failing to take judicial notice of the 'childcare disparity': women bear the greater burden of childcare than men, which can limit their ability to work certain hours. A claimant's own disadvantage will not always establish group disadvantage. [Summary checked against a practitioner text, not the judgment.]
Indirect discrimination; individual disadvantage; correspondence with group disadvantage. The EAT held that individual disadvantage suffered by the claimant must correspond to the group disadvantage, a claimant cannot succeed if the disadvantage they personally suffer is qualitatively different from the disadvantage suffered by the group sharing the relevant protected characteristic. [Summary checked against a practitioner text, not the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Flexible working; indirect discrimination; a rejected flexible working appeal can be a 'disadvantage' even if later granted.
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.