Great Britain-China Centre

"In sex and racial discrimination cases detriment arises in two contexts. It is unlawful to discriminate (directly or indirectly) in the arrangements made to determine who should be discriminated. Detriment is one of the matters that an applicant must demonstrate to succeed in a claim of indirect discrimination. " Under the new Employment Act, Mary Smith is eligible to make request to her employer.

The qualifying criteria for those who will be eligible are: be employees as opposed to agency workers; have at least 26 week's continuous employment with their employer (which fits in with the proposed changes to maternity leave); have a child under six for whom they are responsible as a parent; make the request to enable them to care for that child. Mr. Cohen's refusal for a job share is unlawful because personal assistant job is not managerial or supervisory work, which demands full-time (Holmes v Home Office (1984)).

Clerical posts can easily be shared because it is less technical. Demoting her will not be a proper utilization of her seven years of long experience as a PA and therefore cannot be justified. Prof. Leighton commented; "The employment Guidelines for 2002 is to ensure full utilisation of skills and not to discourage women and others from entering the labour market because of low pay and lack of opportunity more generally. " The alternative work was degrading in terms of the working hours, status and salary.

Under ERA s67 the employer must find alternative work most suitable for her, and appropriate in circumstances. A telephone receptionist has a lower status, less pay and henceforth inappropriate. Bourne and Thorpe 14stated that: "Where an employer seeks to impose fresh terms unilaterally there will be a breach of contact. If the employee continues to work under protest and does not accept the changes in his terms, an action becomes possible under s. 13 of the Employment Rights Act in respect of unauthorised deductions of wages.

" Once the complainant has established that a requirement or condition has been applied to him, which is also applied equally to other persons, he must then show adverse impact. There is little doubt that this can be most contentious part of his claim. The appropriate pool of comparison must be selected, preferably supported by statistical evidence. It is then a matter for the employment tribunal whether it will accept the pool for comparison must be selected, preferably supported by statistical evidence.

It is a fact that it is more difficult for women than men to meet the full time requirement of the job because women do most of the childcare. However in Walkingshaw v The John Martin Group 15 November 2001; Case No: S/401126/00, a recent case of a man who was on full-time employment requested to do part time job to look after his child won the case on direct discrimination. In Mary's case the detriment relied upon is the economic loss through demotion of post to a telephone operator. Therefore the relevant question under paragraph (iii) is did the applicant suffer the detriment?

; In this case she could not comply with the requirement to be a full time worker and therefore suffered a detriment. The date on which compliance with the requirement or condition is to be judged on which it is applied, not at some future date 15. In Handels-og case, the ECJ held that is contrary to the Equal Treatment Directive and to the Equal Treatment Directive and to the Pregnant Worker's Directive … Article 2(3) of Directive 76/207 16 recognises the legitimacy, in terms of the principle of equal treatment, of protecting woman's biological condition during and after pregnancy. Prof. Leighton17 stated:

"Maternity Directive of 1992(92/85) had a focus on the health and safety aspects of pregnancy (so as to use Article 118A). Refusal to give a job, even where the job is of short duration, has long been considered discrimination on grounds of sex. (Dekker C-177/88 1-3941 & Webb v Brown case) Justification Section 1(1)(b) and SDA 1975, s. 1(2) as amended provide a defence for the employer in that he is given the opportunity to justify the requirement or condition. The test for establishing justification is the same as the test for establishing a genuine material difference/factor under EPA 1970, s.

1(3). 18 In the case of Hampson v Department of Education and Science19, it was held, on the meaning of 'justifiable' within s. 1(1)(b), that it requires an objective balance to be struck between the discriminatory effect of the requirement or condition and the reasonable needs of the person who applies it. The test of justifiability in related fields should be consistent with each other. Lord Balcombe commented 'In my judgement 'justifiable' requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition20. "

Furthermore Lord Justice agreed that the best interpretation which can be put on the authorities, in particular on the decisions of this court in Ojutiku v Manpowers Services Commission21 and of Rainey v Greater Glasgow Health Board22, is that the correct test is one which requires an objective balance to be struck between the discriminatory effect of the requirement or condition and the reasonable needs of the person who applies it. If, and only if, its discriminatory effect can be objectively justified by those needs will the requirement or condition be 'justifiable' within s1 (1)(b)(ii) of the Race Relations Act.

The fact that a requirement or condition is not inherently discriminatory does not amount to 'justification'. In Ojutiku case it was held that it was not essential for an employer to prove that the requirement was necessary for the good of the business but rather that "If a person produces reasons for doing something which would be acceptable to right thinking people as sound and tolerable reasons for so doing then he has justified his conduct. " As a result of this decision, in Legislating for Change? The EOC proposed that "justifiable" be amended to "necessary".

This proposal has been-re considered in the light of developments in European Community and United Kingdom law. The ECJ, in Bilka-Kaufhaus GmbH v Weber von Hartz [986] IRLR 317, adopted a strict test of justifiability is incorporated in the Sex Discrimination Act. Mary Smith's employment status is of an employee and the contract of employment was of a PA and not a receptionist, which is of a lower status and pay. Her period of employment is long. The Jewish firm needs a seminar from the Racial Equality First 23to understand the legal policies. It is a violation of Equal Treatment Directive.

Mary was subjected to other detriment (s 6 (2) (b); detriment may exist even though the employee is compensated for it. In Jeremiah v Ministry of Defence, it was held that the fact that the employee was compensated for the dirty work by an additional payment did not mean that he was subjected to a detriment. An employer cannot buy the right to discriminate. In London Underground Ltd V Edwards24, the EAT held that the employment tribunal had been entitled to take into account there common knowledge that proportionately a larger number of women have childcare responsibilities than men, and thus indirect discrimination had been made out.

Having regard to her long service (10 years) and the fact that the demands for her family would be less in the future, the employers should have made arrangements. Thus the defence of justification was not made out. 25 Direct Racial Discrimination26 Direct discrimination is when one is treated less favourably because of one's race. But a few types of job, employers are allowed to make a person's race a 'genuine occupational qualification. permissible discrimination on qualification are allowed for authenthecity.

In the second case, Errol Davies was directly discriminated on racial grounds when his promotion was refused because of his German partner not because of his Afro-Caribbean race origin. Under s (4)(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee.

In the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them ; or(c) by dismissing him, or subjecting him to any detriment. Mr. Cohen subjected Errol to his detriment by injury to feelings when he formally offered told him that he fitted the bill and economic benefits.

His case is much easier to prove because he has direct evidence; but in a situation where there is no one there to testify it is extremely difficult to prove it. Direct evidence of race discrimination is likely to consist of inferences raised from primary facts as in King v Great Britain-China Centre.

It is the leading case on burden of proof in racial discrimination. The fact that a less qualified person of a different race is promoted above a better- qualified person of another race does not automatically result in discrimination. But if a less qualified individual of a different race from the complainant achieves promotion instead of the complainant then this will give rise to the inference of discrimination particularly if the selection process involved irrelevant or subjective criteria or criteria which were indirectly discriminatory.

In Battacharya 27it was held that in the absence of any convincing non-discriminatory explanation, the tribunal drew an inference of unlawful race discrimination. In Wilson v TB Steelworks a white woman was on the point of being offered a job, but when she disclosed that her husband was black, the offer was withdrawn. It was held that this amounted to unlawful discrimination. The fact that members of racial groups are treated differently does not, by itself, constitute unlawful discrimination.

It must be shown that the treatment was less favourable on the grounds of race28, which happened on the case Errol Davies. Although he was of Afro- Caribbean descent he was not discriminated on this ground. White race can also be reversibly discriminated as in the recent case of a Caucasian barrister in the CPS, who was discriminated from his coloured competitor. During the formal interview Mr. Cohen told Errol that he "fitted the bill" and was "just the man for the job. It was in the informal party that Mr. Cohen discovered that Errol's partner, Heike Muller was a lady of German origin.

The worst part of it was that Mr. Cohen became cold and non-conversational towards them and they were both asked to leave after only 20 minutes, whereas the other candidate and his partner were allowed to remain. This is a violation of Human Right Act article 8 and 14. Once a person is employed, it is unlawful to discriminate against him on racial grounds in the way he is afforded access to opportunities for promotion. Direct Discrimination involves treating someone less favourably on racial ground because of his partner, who was of a German race.

Errol has superior qualifications and experience compared to his male and Caucasian competitor. In R v Birmingham City Council, ex prate Equal Opportunities Commission29Lord Goff stated: "In the present case whatever may have been the intention or motive of the council, nevertheless it is because of their sex that the girls in question receive less favourable treatment than the boys, and so are subject of discrimination under the Act of 1975. This is well established in a long line of authority. "

It is understandable that a lot of British people whose memories of German atrocities during Nazi invasions have resentment towards the Germans, but if we allow this the purpose of the Act will be defeated. Neil LJ in King stated that the current law on proving direct discrimination is. "Though there will be some cases where for example, the non-selection of the applicant for a post or promotion is clearly on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination.

In such circumstances the Tribunal will look to the employer for an explanation. If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate of unsatisfactory it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds This is not a matter of law but, as May LJ put it in Noone, 'almost common sense " Errol's case is a straightforward case because Carol Jones overheard the conversation so he has a witness. The non-selection of Errol was due to racial ground of his partner, a prima facie case of racial direct discrimination.

Victimisation30 If a person wants to complain about being discriminated against (or if a person are helping a colleague who is complaining), that person might fear that the employer may, for example treat her/him less favourably for this reaso Any person may complain to the employment tribunal that another person has committed an act of discrimination. It will be unlawful for Mr. Cohen under S 4 (1)(b) to threaten Carol to cut her pay in half if she assist Errol in a discrimination claim.

It is unlawful to victimise a person because that person has brought proceedings under the Act, given evidence or information in connection with such proceedings, or made allegations that someone has contravened the Act. Section 4 1(b) Discrimination by way of victimisation is stated as: a person (A) discriminates against another B if he treats B less favourably than he treats or would treat persons in the same circumstances, and does so by reason that B has (b) given evidence or information in connection with proceedings brought by any person against A or any other person under these Regulations.

The Commission's original view was that wider publicity of the illegality of victimisation could give sufficient protection to those seeking their rights. But in Cornelius v University College of Swansea31 it appears that it is no longer sufficient for complainants to show that they were victimised because they brought proceedings against their employer under the Act.