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

GENDER REASSIGNMENT

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

Race

• Non-exhaustive list:

• Colour

• Nationality

• Ethnic origins

• National origins

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?

Sex (gender)

• Limited to gender only

• Physiology of being male or female

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

Remedy hearing

• Declaration

• Compensation

• Recommendation

• Costs

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

Conclusions

• Plenary session

• Questions?

• Conclusions

• Overview of the law on discrimination

• Demonstrated the scope of employment tribunal claims

• Examination of process

THANK YOU FOR LISTENING