The Equality Act 2010 - Victimisation and harassment

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Overview

The Equality Act 2010 is a fundamental part of UK anti-discrimination law, consolidating and strengthening previous legislation to ensure fairness and protect individuals from mistreatment. For aspiring solicitors preparing for the SQE1 FLK1 exam, a thorough understanding of victimisation and harassment under this Act is vital. This article provides an in-depth look at these concepts, their legal definitions, practical applications, and relevance within broader legal frameworks.

The Equality Act 2010: Building Fairness

The Equality Act 2010 aims to eliminate discrimination, ensure equal opportunities, and encourage good relations between different groups in society. It covers various aspects of public life, including employment, education, and services. The Act identifies nine protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

Exploring Victimisation

Definition and Legal Framework

Victimisation, outlined in Section 27 of the Equality Act 2010, occurs when someone is treated adversely for undertaking, or being believed to have undertaken, a protected act. This ensures that individuals can assert their rights or support others without facing retaliation.

Key Aspects of Victimisation

  1. Protected Act: Includes making a claim, giving evidence or information, or alleging a contravention of the Act.

  2. Detriment: Any disadvantageous treatment, broadly interpreted by courts to include both tangible and intangible forms.

  3. Causal Link: There must be a connection between the protected act and the negative treatment experienced.

Case Law Example: The 'But For' Test

In Deer v University of Oxford [2017] EWCA Civ 121, the Court of Appeal established that the 'but for' test should be applied in victimisation claims. If the protected act significantly influenced the unfair treatment, a claim can be made.

Example: Victimisation in Practice

Dr. Amelia Chen, a research fellow, supports a colleague's racial discrimination complaint. Her research funding is subsequently reduced, and she is excluded from meetings. Despite claims of budget issues, Dr. Chen can argue victimisation due to the link between her actions and the treatment she faced.

Defining Harassment

Legal Definition and Types

Section 26 of the Equality Act 2010 defines harassment as:

  1. Unwanted conduct related to a protected characteristic
  2. Sexual harassment
  3. Less favourable treatment for rejecting or accepting sexual harassment

Unwanted Conduct Related to a Protected Characteristic

This occurs when conduct related to a protected characteristic:

  • Violates the victim's dignity, or
  • Creates an intimidating, hostile, degrading, humiliating, or offensive environment

The Reasonable Person Test

Tribunals use an objective test to assess harassment, considering:

  • How the complainant is affected
  • Case circumstances
  • Whether it is reasonable for the conduct to have that effect

Case Law: The Three-Stage Test

Richmond Pharmacology v Dhaliwal [2009] IRLR 336 established a test:

  1. Did the unwanted conduct occur?
  2. Did it violate the claimant's dignity or create a problematic environment?
  3. Was it reasonable for the conduct to have that effect?

Example: Harassment in a Professional Setting

Marcus, a Middle Eastern junior solicitor, faces stereotypical jokes from colleagues. Despite his objections, the behaviour continues, dismissed as "office banter" by superiors. This scenario likely qualifies as harassment under the Act.

Legal Procedures and Claims

Navigating procedural aspects of claims under the Equality Act 2010 is vital for SQE1 FLK1 candidates:

  1. Early Conciliation: Notify ACAS and consider early conciliation before filing a tribunal claim.

  2. Time Limits: Claims generally must be filed within three months less one day from the incident, with possible extensions where "just and equitable."

  3. Burden of Proof: The claimant initially must establish facts suggesting discrimination. If successful, the burden shifts to the respondent to demonstrate otherwise.

  4. Remedies: Tribunals can provide various remedies, including rights declarations, compensation (uncapped in discrimination cases), and recommendations to mitigate adverse effects.

Interaction with Other Legal Frameworks

The Equality Act 2010 interacts with other frameworks, including:

  • Human Rights Act 1998: Relevant for cases involving public authorities.
  • Employment Rights Act 1996: Offers protection against unfair dismissal.
  • Health and Safety at Work Act 1974: Important when harassment affects mental health.

Conclusion

A strong understanding of victimisation and harassment under the Equality Act 2010 is essential for the SQE1 FLK1 exam and legal practice. Key takeaways include:

  • Broad protection against victimisation for protected acts
  • Three types of harassment and the importance of the reasonable person test
  • Procedural aspects of claims, including time limits and burden of proof
  • Interaction with other legal frameworks

By thoroughly comprehending these principles, aspiring solicitors can effectively handle complex discrimination cases and contribute to creating equitable work environments and societies.