Introduction
The Equality Act 2010 codifies the legal framework for combating discrimination in the United Kingdom, delineating prohibited conduct, including victimisation and harassment. Victimisation occurs when an individual is subjected to detrimental treatment because they have performed a protected act, such as making a complaint of discrimination. Harassment involves unwanted conduct related to a protected characteristic, which has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment. A thorough understanding of these provisions is essential for the SQE1 FLK1 exam.
Examining Victimisation under the Equality Act 2010
Legal Definition and Core Elements
Section 27 of the Equality Act 2010 defines victimisation. It arises when a person (A) subjects another person (B) to a detriment because B has done, or A believes B has done or may do, a protected act. Protected acts include bringing proceedings under the Act, giving evidence or information in connection with proceedings, making allegations of a breach, or doing any other thing for the purposes of or in connection with the Act.
Detrimental Treatment and Causal Link
Detriment refers to any disadvantage or adverse treatment that a reasonable person would consider as such. The treatment must be linked to the protected act; there must be a causal connection demonstrating that the detriment was because of the protected act.
Case Law Illustration
In Deer v University of Oxford [2017] EWCA Civ 121, the Court of Appeal emphasized the importance of the causal link in victimisation claims. The court applied the "but for" test, considering whether the detrimental treatment would have occurred but for the claimant's protected act.
Practical Example
Consider Sofia, an employee who files a complaint about gender discrimination. Subsequently, she is excluded from meetings and denied opportunities for advancement. This exclusion is not just a coincidence—it represents a detriment linked to her protected act of filing the complaint, illustrating victimisation under the Act.
Understanding Harassment under the Equality Act 2010
Definition and Fundamental Principles
Harassment is defined in Section 26 of the Equality Act 2010. It encompasses unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment.
Types of Harassment
The Act identifies three types:
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Harassment related to a protected characteristic: Unwanted conduct connected to any of the protected characteristics except pregnancy and maternity, and marriage and civil partnership.
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Sexual harassment: Unwanted conduct of a sexual nature.
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Less favourable treatment because of submission to or rejection of sexual harassment.
The Objective and Subjective Tests
An assessment of harassment considers both the perception of the victim and whether it is reasonable for the conduct to have that effect. The context and circumstances are key.
Case Illustration
In Richmond Pharmacology v Dhaliwal [2009] UKEAT 0458_08_2009, the Employment Appeal Tribunal outlined a three-stage test for harassment claims: establishing unwanted conduct, determining if it violated dignity or created an adverse environment, and assessing whether it is reasonable for the conduct to have that effect.
Practical Scenario
Picture Aisha, who is repeatedly subjected to derogatory comments about her religious attire by a colleague. Despite expressing her discomfort, the comments persist. You can see how this unwanted conduct not only violates her dignity but also creates a hostile environment, constituting harassment.
Procedural Aspects and Legal Requirements
Time Limits for Claims
Claims under the Equality Act 2010 must generally be brought within three months less one day from the date of the discriminatory act. In cases of continuing acts, the time limit runs from the last act in the series.
Burden of Proof
Initially, the claimant must establish facts from which discrimination can be inferred. Once established, the burden shifts to the respondent to demonstrate that discrimination or harassment did not occur.
Remedies Available
Employment Tribunals can award remedies including declarations, compensation for financial loss and injury to feelings, and recommendations to the employer to take specific steps to reduce the adverse effect on the claimant.
Interaction of Victimisation and Harassment
Victimisation and harassment can intersect in complex ways. For example, an individual may experience harassment as a form of victimisation after performing a protected act. Let's examine how these concepts interlock.
Complex Scenario
Consider Michael, who supports a coworker's complaint of age discrimination—a protected act. Subsequently, his supervisor assigns him demeaning tasks unrelated to his role and makes frequent derogatory remarks about his competence. The supervisor's actions subject Michael to a detriment because of his protected act (victimisation) and involve unwanted conduct that violates his dignity (harassment).
Legal Principles in Practice
Understanding how the causal link in victimisation claims interacts with the perception and reasonableness tests in harassment is critical. In Michael's case, the detrimental treatment stems from his protected act, satisfying the requirements for victimisation. Simultaneously, the unwanted conduct creates an offensive environment, meeting the criteria for harassment.
Specific Requirements for Legal Practitioners
Importance of Procedural Compliance
Procedural requirements must be strictly followed. Missing the limitation period for bringing a claim can bar a claimant from seeking redress. Legal practitioners must ensure timely action and proper evidential support.
Evidential Considerations
Gathering comprehensive evidence is essential. Documentation of incidents, witness statements, and any communications related to the discriminatory acts strengthen the claimant's case and are necessary for shifting the burden of proof.
Conclusion
The Equality Act 2010's provisions on victimisation and harassment establish a legal framework addressing scenarios where individuals face detrimental treatment and unwanted conduct. The complex interplay between these concepts requires a thorough understanding of their definitions, legal principles, and procedural requirements. Applying the "but for" test in victimisation and the objective and subjective assessments in harassment demands careful analysis. Legal practitioners must meticulously apply these provisions to effectively advocate for clients and uphold the protections enshrined in the Act.
