Indirect discrimination
Eligibility:
Is ‘x’ protected under the act? Is there more than one claim?
Employees – s39
Job applicants – s39
Unfair / wrongful / redundancy / indirect discrim?
Contract workers – s41
Office holders – s50
Trade union members – s57
Ex-employees – s109
Time limits…
To make a claim for DD, ‘x’ must bring their claim within 3 months from the act of discrimination. This can be extended in the
ET sees it to be just and equitable to do so – s123 EA.
NOTE: if the discrimination is on going, the clock starts when the last act of discrimination took place
When does ‘x’s 3 months start and end?
+ there is no required length of service or continuous employment which ‘x’ needs to bring a claim.
Is ‘x’ eligible?
What was the potential unlawful act?
Employers are prohibited from committing a range of unlawful acts. These acts fall under s39-40.
On the facts, the potential unlawful act was…Recruitment / Promotion / Dismissal / Harassment / Post-employment /
Subjecting ‘x’ to a detriment.
- What is an unlawful act?
- What was the unlawful act on the facts?
- How did the unlawful act occur?
Recruitment:
s39(1): An employer must not discriminate against a person -
(a) in the arrangements the employer makes for deciding to whom to offer employment.
(b) as to the terms on which the employer offers the employee employment.
(c) by not offering employment.
Was the unlawful act discrimination in recruitment, and how?…(the unlawful act was discriminating in recruitment because ‘x’
did not offer ‘y’ employment based on their protected characteristic…)
NOTE: S159 – allows an employer to take protected characteristics into account when deciding who to recruit if there is an
underrepresentation of the individual with the protected characteristic - as long as – the candidates are equally qualified and
the positive discrimination has a legitimate aim.
Promotions and dismissals:
S39(2): An employer must not discriminate against an employee in terms of -
(a) the employees terms of employment;
(b)in the way the employer affords the employee access, or by not affording the employee access, to opportunities for
promotion, transfer or training or for receiving any other benefit, facility or service;
(c) by dismissing the employee;
(d) by subjecting B to any other detriment.
Dismissals includes constructive dismissals – s39(7)
Dismissals, even those which are later withdrawn, can give rise to a detriment
Detriment does not include harassment
Was the unlawful act discrimination in promotion/opportunity or discrimination in dismissal, and how?
Post-employment matter:
S108 prohibits discrimination after the employment relationship has ended – the discrimination must arise out of and be closely
connected to the former employment relationship.
Was the unlawful act discrimination in a post-employment matter, and how?
Subjecting a person to a detriment:
S39(2)(d) prohibits discrimination against an employee by subjecting them to a detriment.
Was the unlawful discrimination subjecting a person to detriment, and what is the detriment?
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Eligibility:
Is ‘x’ protected under the act? Is there more than one claim?
Employees – s39
Job applicants – s39
Unfair / wrongful / redundancy / indirect discrim?
Contract workers – s41
Office holders – s50
Trade union members – s57
Ex-employees – s109
Time limits…
To make a claim for DD, ‘x’ must bring their claim within 3 months from the act of discrimination. This can be extended in the
ET sees it to be just and equitable to do so – s123 EA.
NOTE: if the discrimination is on going, the clock starts when the last act of discrimination took place
When does ‘x’s 3 months start and end?
+ there is no required length of service or continuous employment which ‘x’ needs to bring a claim.
Is ‘x’ eligible?
What was the potential unlawful act?
Employers are prohibited from committing a range of unlawful acts. These acts fall under s39-40.
On the facts, the potential unlawful act was…Recruitment / Promotion / Dismissal / Harassment / Post-employment /
Subjecting ‘x’ to a detriment.
- What is an unlawful act?
- What was the unlawful act on the facts?
- How did the unlawful act occur?
Recruitment:
s39(1): An employer must not discriminate against a person -
(a) in the arrangements the employer makes for deciding to whom to offer employment.
(b) as to the terms on which the employer offers the employee employment.
(c) by not offering employment.
Was the unlawful act discrimination in recruitment, and how?…(the unlawful act was discriminating in recruitment because ‘x’
did not offer ‘y’ employment based on their protected characteristic…)
NOTE: S159 – allows an employer to take protected characteristics into account when deciding who to recruit if there is an
underrepresentation of the individual with the protected characteristic - as long as – the candidates are equally qualified and
the positive discrimination has a legitimate aim.
Promotions and dismissals:
S39(2): An employer must not discriminate against an employee in terms of -
(a) the employees terms of employment;
(b)in the way the employer affords the employee access, or by not affording the employee access, to opportunities for
promotion, transfer or training or for receiving any other benefit, facility or service;
(c) by dismissing the employee;
(d) by subjecting B to any other detriment.
Dismissals includes constructive dismissals – s39(7)
Dismissals, even those which are later withdrawn, can give rise to a detriment
Detriment does not include harassment
Was the unlawful act discrimination in promotion/opportunity or discrimination in dismissal, and how?
Post-employment matter:
S108 prohibits discrimination after the employment relationship has ended – the discrimination must arise out of and be closely
connected to the former employment relationship.
Was the unlawful act discrimination in a post-employment matter, and how?
Subjecting a person to a detriment:
S39(2)(d) prohibits discrimination against an employee by subjecting them to a detriment.
Was the unlawful discrimination subjecting a person to detriment, and what is the detriment?
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