Equality Act 2010: claims and procedure
Outcomes
1. Explain the legal tests for harassment, indirect discrimination and victimisation in the Equality
Act 2010.
2. Advise an employer of the appropriate steps to take to minimise exposure to claims of
harassment and other Equality Act claims.
3. Recognise potentially unlawful indirect discrimination scenarios, apply the relevant legal tests
to those scenarios and explain the arguments a client could use to have the best chance of
success in each case.
4. Draft an ET1 form and advise an employer or a claimant on the legal and practical issues
involved in a discrimination claim.
Overview of indirect discrimination – s.19 Equality Act 2010
Indirect discrimination under s.19(1) occurs when an employer:
Þ Applies a provision, criterion of practice (PCP) which
Þ Puts workers and employees sharing a protected characteristic
Þ At a particular disadvantage
Þ As compared with workers who do not share that protected characteristic
, Exam structure
Step 1: Eligibility
Eligibility Protects both workers and employees and therefore offers more
protection that s.230(1)
Employees- s.39 ERA
S.83(2) ERA defines employment as employment under a contract of
employment
o Job applicants s.39
o Contract workers s.41
o Office holders s.50
o Employees whose employment has ended s.108
There is no length of service requirement- continuity of service is irrelevant
Time Limit o 3 months from the date of the unlawful act s.123
o Or such time as just and equitable s.123(1)(b)
Step 2: identify the relevant protected characteristic- s.4- 12
s.19(3) provides the following protected characteristics:
o Age- s.5
o Gender reassignment s.7
o Marriage and civil partnership s.8
o Race s.9
o Religion or belief s.10
o Sex s.11
o Sexual orientation s.12
o Disability s.6
o Pregnancy and maternity is not covered by indirect discrimination under s.19(3)
, Has there been a potentially unlawful Act? S.39- all the employee’s burden
Potentially s.39(1) where an employer discriminates against a person (includes job
unlawful Act applicants):
(a) In the arrangements for deciding to whom to offer employment
(b) As to the terms on which the employer offers employment
(c) By not offering employment
s.39(2) discriminates against an employee-
(a) As to the terms of employment
(b) In the way the employer offers the employee access or not affording
access to opportunities for promotion, transfer, training or receiving
any other benefit, facility or service.
(c) By dismissing the employee
(d) Subjecting the employee to any other detriment
What is the PCP s.19(1) in committing the identified potentially unlawful act, has the employer
applied? applied a provision, criterion or practice to the claimant?
PCP
Is not defined but covers informal and formal working practices and can
include promotion policies and working practices
Has the employer s.19(2)(a)
applied the PCP if it has only been applied to those with the protected characteristic, it would
to others without be direct discrimination
the protected
characteristic? if applied to those without the PCP- indirect discrimination
s.19(2)(a)
Group Does or would the PCP put persons with the claimant’s protected
disadvantage characteristic at a ‘particular disadvantage’ compared to those without
it?
s.19(2)(b) o S.19(2)(b)
o Para 4.15 Equality Act statutory code of practice highlights that the
circumstances of the two groups must be sufficiently similar for a
comparison to be made and no material differences in the
circumstances- s.23
o The comparison should be between the impacts of the PCP on those
within the pool with the characteristic compared to those who do not
share the characteristic
London underground v Edwards- ET held that the introduction of flexible
working hours was indirectly discriminatory because women generally have
more child-care responsibilities than men and so, the identifiable pool for
comparison would be the male workforce and compare the impact of the
PCP to see if it put females at a particular disadvantage
ACAS age pool
o 21-30
o 31-40
o 41-50
o 51-60
o 61 over
PCP put the
claimant at a
Outcomes
1. Explain the legal tests for harassment, indirect discrimination and victimisation in the Equality
Act 2010.
2. Advise an employer of the appropriate steps to take to minimise exposure to claims of
harassment and other Equality Act claims.
3. Recognise potentially unlawful indirect discrimination scenarios, apply the relevant legal tests
to those scenarios and explain the arguments a client could use to have the best chance of
success in each case.
4. Draft an ET1 form and advise an employer or a claimant on the legal and practical issues
involved in a discrimination claim.
Overview of indirect discrimination – s.19 Equality Act 2010
Indirect discrimination under s.19(1) occurs when an employer:
Þ Applies a provision, criterion of practice (PCP) which
Þ Puts workers and employees sharing a protected characteristic
Þ At a particular disadvantage
Þ As compared with workers who do not share that protected characteristic
, Exam structure
Step 1: Eligibility
Eligibility Protects both workers and employees and therefore offers more
protection that s.230(1)
Employees- s.39 ERA
S.83(2) ERA defines employment as employment under a contract of
employment
o Job applicants s.39
o Contract workers s.41
o Office holders s.50
o Employees whose employment has ended s.108
There is no length of service requirement- continuity of service is irrelevant
Time Limit o 3 months from the date of the unlawful act s.123
o Or such time as just and equitable s.123(1)(b)
Step 2: identify the relevant protected characteristic- s.4- 12
s.19(3) provides the following protected characteristics:
o Age- s.5
o Gender reassignment s.7
o Marriage and civil partnership s.8
o Race s.9
o Religion or belief s.10
o Sex s.11
o Sexual orientation s.12
o Disability s.6
o Pregnancy and maternity is not covered by indirect discrimination under s.19(3)
, Has there been a potentially unlawful Act? S.39- all the employee’s burden
Potentially s.39(1) where an employer discriminates against a person (includes job
unlawful Act applicants):
(a) In the arrangements for deciding to whom to offer employment
(b) As to the terms on which the employer offers employment
(c) By not offering employment
s.39(2) discriminates against an employee-
(a) As to the terms of employment
(b) In the way the employer offers the employee access or not affording
access to opportunities for promotion, transfer, training or receiving
any other benefit, facility or service.
(c) By dismissing the employee
(d) Subjecting the employee to any other detriment
What is the PCP s.19(1) in committing the identified potentially unlawful act, has the employer
applied? applied a provision, criterion or practice to the claimant?
PCP
Is not defined but covers informal and formal working practices and can
include promotion policies and working practices
Has the employer s.19(2)(a)
applied the PCP if it has only been applied to those with the protected characteristic, it would
to others without be direct discrimination
the protected
characteristic? if applied to those without the PCP- indirect discrimination
s.19(2)(a)
Group Does or would the PCP put persons with the claimant’s protected
disadvantage characteristic at a ‘particular disadvantage’ compared to those without
it?
s.19(2)(b) o S.19(2)(b)
o Para 4.15 Equality Act statutory code of practice highlights that the
circumstances of the two groups must be sufficiently similar for a
comparison to be made and no material differences in the
circumstances- s.23
o The comparison should be between the impacts of the PCP on those
within the pool with the characteristic compared to those who do not
share the characteristic
London underground v Edwards- ET held that the introduction of flexible
working hours was indirectly discriminatory because women generally have
more child-care responsibilities than men and so, the identifiable pool for
comparison would be the male workforce and compare the impact of the
PCP to see if it put females at a particular disadvantage
ACAS age pool
o 21-30
o 31-40
o 41-50
o 51-60
o 61 over
PCP put the
claimant at a
