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HUMBERSIDE & SOUTH YORKSHIRE POLICESENIOR OFFICER TRAINING
7 DECEMBER 2012
‘EMPLOYMENT TRIBUNAL PROCEEDINGS’
BY
JAMES ARNOLDBARRISTER
Introduction
• Key concepts in discrimination law
• The Equality Act 2010
• Protected characteristics
• Types of claim in the employment tribunal
• Whistleblowing
• A brief overview on protected disclosures
• Case study
• The Employment Tribunal Process
• Cross-examination exercise
The Equality Act 2010
• Equal Pay Act 1970
• Sex Discrimination Act 1975
• Race Relations Act 1976
• Disability Discrimination Act 1995
• Employment Equality (Religion or Belief) Regulations 2003
• Employment Equality (Sexual Orientation) Regulations 2003
• Employment Equality (Age) Regulations 2006
Protected characteristics
• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex (gender)
• Sexual orientation
Age
• Particular age group
• Age group
• Particular age
• Range of ages
• Over 50s / 21 year olds / people in their forties
Disability
• Physical or mental impairment
• Long-term
• Substantial adverse effect
• Ability to carry out normal day-to-day activities
Marriage & civil partnership
• Currently married or have civil partnership status
• No protection for people who are:
• Single
• Co-habiting
• Widowed
• Divorced
• About to be married
Pregnancy & maternity
• Protected period
• Unfavourable treatment
• Pregnancy / illness / maternity leave
• Decision taken during the protected period
Religion or belief
• Religion or lack of religion
• Buddhism, Christianity, Hinduism, Islam & Judaism
• Druidism, Voodoo, Witchcraft?
• Atheism, agnostics
• Belief or lack of belief
• The test
• Pacifism, Environmental, Socialism, Marxism, Darwinism
• Political belief?
Sexual orientation
• Homosexuals
• Gay males (and lesbians)
• Bisexuals
• (Male and female)
• Heterosexuals
• ‘Straight’ males and female
Direct discrimination
• Less favourable treatment
• Because of a protected characteristic
• Actual / hypothetical comparator
• Association / perception
Indirect discrimination
• Provision, criterion or practice
• Applied equally
• Particular disadvantage to a group with a protected characteristic
• Disadvantage cannot be shown to be a proportionate means of achieving a legitimate aim
Harassment
• Unwanted conduct
• Related to a protected characteristic
• Purpose or effect of:
• Violating a person’s dignity; or
• Creates an intimidating, degrading, humiliating or offensive environment
• Reasonable for the conduct to have that effect?
Victimisation
• Retribution
• Protected act
• Issue an employment tribunal claim
• Make an allegation of discrimination
• Give evidence or information in connection with proceedings
• Doing any other thing for the purposes of the Act
• Subjected to a detriment
Disability discirmination
• Discrimination arising from a disability
• Unjustified unfavourable treatment of a disabled person because of something arising in consequence of their disability
• Failure to make reasonable adjustments
• Provision, criterion or practice places the disabled person at a substantial disadvantage compared to a non-disabled employee
• Duty to take reasonable steps to remove that disadvantage
Whistle-blowing
• Protected disclosure under the Employment Rights Act 1996:
• Disclosure of information
• Reasonable belief
• Tends to show:
• Criminal offence• Failure to comply with a legal obligation• Miscarriage of justice• Health and safety• Environmental damage• Deliberate concealment
• Good faith
Detriment
• What is a detriment?
• Reasonably disadvantaged
• Posting / lack of promotion / dismissal
• Causation
• Detriment other than dismissal
• Dismissal
Case Study
• See Appendix 1
• 2 problems
• George the police helicopter pilot
• Maria the response driver
• 20 mins ‘break out’
• Discussion on results
The Employment Tribunal process
• Claim
• ET1 and Particulars of Complaint
• Response
• ET3 and Grounds of Resistance
• Request for Additional Information
• Statutory Questionnaire
• Adverse inference
Case Management Discussion
• Discuss ways to manage the case
• Identification of issues
• Directions:
• Disclosure and inspection of documents
• Expert reports
• Preparation of trial bundles
• Exchange of witness statements
• Trial date and duration
Pre-hearing Review
• Preliminary hearing
• Decide a preliminary issue
• Employee?
• Disabled?
• Strike out a claim that has no reasonable prospect of success
• Order a deposit for a claim that has little reasonable prospect
• Jurisdiction
Substantive hearing
• Composition of tribunal
• Role of the advocate
• Process at the hearing:
• Housekeeping
• Examination-in-chief / Cross-examination / Re-examination
• Questions from the Tribunal
• Closing submissions
• Deliberations
Review & appeal
• Review of the Tribunal’s decision by the Tribunal
• Appeal on error of law:
• Employment Appeal Tribunal (‘EAT’)
• Court of Appeal
• Supreme Court
• European Court of Justice (‘ECJ’)
Cross-examination excercise
• PS Michael Tyson v Chief Constable of Riverdale Police
• Disability discrimination claim:
• Failure to make reasonable adjustments
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