Workshop 2: Direct and Indirect Discrimination This workshop covers the two main

Workshop 2: Direct and Indirect Discrimination

This workshop covers the two main statutory discrimination torts: direct and indirect discrimination. After the workshop you should:

Understand the elements needed for claims of direct and indirect discrimination.

Be able to apply the rules relating to direct and indirect discrimination and advise on whether unlawful discrimination has taken place.

Be able to assess (and express your own opinion on) the adequacy and effectiveness of these protections, and the extent to which they help achieve equality at work.

As before, please read at least the core readings prior to the workshop, as these will allow you to participate in the discussion.

Any further readings will be helpful when you are revising or completing the assessment.

Protection against ‘direct’ and ‘indirect’ discrimination

Core readings

B. Hepple (OUP, 2014) ‘Equality. The Legal Framework’ (Hart, 2nd edition) pp.67-91.

The sections on direct and indirect discrimination law in at least ONE of the following:

D. Cabrelli, Employment Law in Context (OUP, 2019). Pages 364-391 and 447-456.

H. Collins et al, Labour Law (CUP 2nd ed, 2020). Pages 349-367.

S. Fredman, Discrimination Law (OUP 2nd ed, 2011). Pages 166-214.

Cases on direct discrimination

James v Eastleigh Borough Council [1990] QB 61.

Smith v Safeway plc [1996] IRLR 456.

Shamoon v IRC [2003] UKHL 11.

Coleman v Attridge Law [2008] ICR 1128 (ECJ)

R (E) v Governing Body of JFS [2009] UKSC 15.

Seldon v. Clarkson, Wright and Jakes [2012] UKSC 16.

Chief Inspector of Education, Children’s Services and Skills v Interim Executive Board of Al-Hijrah School [2017] EWCA Civ 1426.

Taiwo v Olaigbe [2016] UKSC 31.

Core cases: indirect discrimination

R (Elias) v SoS for Defence [2006] 1 WLR 3213

Home Office v Essop; Naaem v Sec. of State for Justice [2017] UKSC 27

CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia [2015] C-83/14

Eweida and Others v UK, [2013] 57 EHRR 8

Homer v Chief Consable of West Yorkshire [2012] UKSC 15

Achbita v G4S Case C-157/15, and Bougnaoui v Micropole Case C-188/15

Further reading

A. Blackham, ‘Judicial retirement ages in the UK legitimate aims and proportionate means?’ (2017) Public Law 196.

R. McCrea, ‘Religion in the Workplace: Eweida and Others v United Kingdom’ (2014) 77 MLR 277.

H. Collins and T. Khaitan, ‘Indirect Discrimination Law: Controversies and Critical Questions’ in H. Collins and T. Khaitan (ed) Foundations of Indirect Discrimination Law, Hart (2018).

L. Vickers, ‘Achbita and Bougnaoui: One Step Forward and Two Steps Back for Religious Diversity in the Workplace’, (2017) 8 European Labour Law Journal 232.

A. McColgan, ‘Class wars? Religion and (In)equality in the workplace’ (2009) 38 ILJ 1.

Workshop Discussion Questions

How are the relevant comparators identified in claims for direct discrimination?

In indirect discrimination cases, how do the courts decide whether a rule or practice puts those with a protected characteristic at a particular disadvantage?

Is it unlawful discrimination for a company to have a mandatory retirement age? What about statutory mandatory retirement ages?

When will the courts view direct discrimination as justified? What about indirect discrimination?

Do you agree with the decision in Eweida v UK?

How would you have decided Achbita and Bougnaoui?

Do the protections against direct and indirect discrimination contained in the Equality Act 2010 advance the goals of discrimination law?

What are the strengths and weaknesses of these two protections in securing equality?