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Critically evaluate the decision of the Court of Appeal in Sullivan and Bury Street Capital Ltd [2021] EWCA Civ 1694?
Answer-
Considering the case study of Sullivan v Bury Street Capital Limited [2021] (EECA Civ 1694), appeal Court convey that if an employee suffers from delusion of paranoid, he or she is not considered to be disable, as stated under equality act of 2010. As hold by ET, the claimant would have no disability, however clean regarding in appropriate dismissal have an uphold.
It is hold by EAT that ET have no err to conclude long run needs while defining the criteria of disability. It has entitlement of concluding evidences which convey that in spite of having considerable adverse influence in the year 2013 and 2017, none of the case indicates the lasting of adverse influence for up to 12 months or the nature of their recurrence. The ET have suitable implications of likely or a probable tendency to occur again with approaching the query of likelihood to suitably recur. Also, ET have no err to decide the unawareness of Respondent and no reasonable expectations of knowing disability.
This case law is an appeal by the claimant against an order of the employment appellate tribunal that is Justice Chaudhary where the appeal was dismissed from the decision of the employment tribunal that the claimant was not disabled according to section 6 of the equality act, 2010. It could approach the question of the likelihood of recurrence in a correct manner. The employment tribunal also had not erred in deciding that respondent had not known and could not be expected to the knowledge of the disability.
Answer-
Considering the case, X v Y Case N. 2413947/2020, The employment tribunal took following decisions –
The judge came to the conclusion that it will not remain as per overriding purpose to grant the stayed proceedings. Issue of legitimate proceedings regarding any distinct jurisdiction is not suggested. During any circumstance, judge is not tending to visualize her reference in claims that will suggest stay of given proceedings as an appropriate choice. For instance, there is no suggestion that in case of a forward movement of the hearing of employment tribunal, any danger regarding panel of employment tribunal can occur in order to make findings that is capable of embarrassing high Court judge. Also the judge have no calls for any such risk element.
It is noted to be a case that consist of illegitimate discrimination based allegations, detriment on different grounds which consist of securing allegation and disclosure of contract termination or any other such issues, as raised by Claimant. There exist a clarity of considerable factual conflicts in between various parties that requires the employment tribunal to resolve. Any of the subsequent delay can inevitably influence evidence voracity. Additionally, respondent is supposed to face expense and costing to be incurred during the procedure of hearings.
CASE STUDIES
(a)Issue-
In the given case, Jane Asher was offered to become a chef for the DVD. But after knowing her disability of being capable of testing food, the organization give a withdrawal to their offer. Another candidate, Tracy Bradshaw is not shortlisted because of not being a vegan. The consideration of their claim is to be discussed.
Rule –The equality act of the year 2010 describes that an individual cannot be discriminated against based on their disabilities. The disability regarding the incapability of tasting food cannot be considered as a criterion of one's inability of being a chef.
Discrimination in an indirect way occurs when an organization has a certain manner of performing their task or a given policy which might create words influence on the disabled individual while comparing to people who have no disability. The indirect disability form is considered legitimate until an organization visualizes the positive cause behind framing that policy. It is further termed as a justification with objective, for instance –
Under the equality act of 2010, the qualification regarding specialized protection doesn't need to be only provided to the vegans. Any employee in the food sector should not be discriminated against based on either being a vegan or nonvegan.
According to the section 6 of the equality act, 2010 states that an individual is said to be disabled if that individual is having some kind of impairment either mental or physical. If that sort of impairment has a long term and material negative impact on the capability of carrying out normal activities.
Taking reference from the case law of Casamitjana Costa v League Against Cruel Sports ET/3331129/2018, it is discrimination to claim dismissal of employees based on being ethically vegan and vice versa. Also, referring to the case-law of Ltd v W of the year 2021, a suitable date could be considered regarding the employment tribunal for using their access if the Claimant has any disability.
From the above-given analysis of the case study, it can be concluded that neither offering withdrawal of Jane Asher based on her disability nor ignoring the shortlisting of Tracy Bradshaw based on not being vegan is justified. Both of the candidates are rather required to be judged based on their cooking talent.
Issue –
From the given scenario, Shahid Rahman, a waiter at DVD was verbally abused by a customer because of being a Muslim and was asked not to serve that customer. Also another waiter, Simon James refuse to serve a customer. Their claim toward the employment tribunal is required to be discussed.
Rule –
As stated under the act of equality of the year 2010, it is illegitimate for discriminating against an individual against some other person due to their belief or religion or due to lacking a particular belief or religion. For instance, equality secures Christian in case they face any discrimination against their religion due to their belief in Christianity. The religion in the aforementioned law indicates any particular religion as well as a reference to that religion consisting of the reference of lacking religion. Similarly, belief indicates a given belief of philosophy or religion as well as a reference towards the belief which includes the reference toward lacking belief.
Discrimination based on religion is strictly denied under the equality act of 2010. It is one of 9 major characteristics or provisions of the Equality Act, which includes discrimination based on age; disability; reassignment of gender; civil partnership or marriage during employment, Maternity, and pregnancy; race; belief or religion; sex and sexual orientation.
Analysis –
It is stated by the act of equality of the year 2010 that any individual should not be discriminated against only because he or she –
Conclusion –
It can be concluded that the customer has no capacity of assaulting the waiter, Shahid Rahman either through verbal abuse or refusing his service based on his religion or because of being a Muslim. Further, Simon James is not capable of refusing his service to any of the customers. He was recruited by the DVD as a waiter and is required to follow his profession by considering every customer equal without any discrimination.
CRITICALLY EVALUATE WHETHER THE CHANGES INTRODUCED INTO THE EQUALITY ACT 2010 ABOUT DISABILITY DISCRIMINATION HAVE RESOLVED THE ISSUES PRESENTED BY THE DISABILITY DISCRIMINATION ACT 1995.
ANSWER-
INTRODUCTION
In this section of the report, there is some evaluation made that whether the modifications that has been introduced in the equality act 2010 regarding disability discrimination and also how they have resolved the issues presented under disability discrimination act 1995.
The disability discrimination act, of 1995 was the first legislation in the country of the United Kingdom that was focused on protecting disabled people against various forms of discrimination. There were years of campaigning and several protests which led up to the passing of the act. This also includes incidences of disobedience or civil disobedience.
The act was passed by the Prime Minister John Major and his conservative government that came into effect in the year 1995.
DISCUSSION
History of the laws and issues presented
At the beginning of the year the 1990s, thousands of protestors involved several disabled persons, who took to the streets for demanding new laws. These were the protests that involved a direct action network of the disabled people. This includes the handcuffing of the protectors. They continued this campaign of civil disobedience and also well-attended demonstrations and marches. The approach of the group has rejected the notions of charity rather than asking for protection and other legal rights which were required to be enriched in the legislation.
The groups and campaigners who fought for disabled rights have been lobbying the parliament for several years which preceded the law. They keep those issues awake in the minds of the wider public and the politicians.
Introduction to the disability discrimination act 1995-
According to the disability discrimination act 1995, the term disability is defined as a mental or physical impairment that has a substantial effect and long-term adverse effect on the ability of the individual for carrying out normal day-to-day activities.
The act protected against discrimination in several areas including-
Occupation and employment, education, the provision of goods, transport, and the activities of the public functions.
The equality act 2010, states that one must not be discriminated against from getting a job if that individual is disabled. If an individual thinks that he has a disability, then it is known as the discrimination by perception, and when an individual is connected to someone with a disability, then it is known as discrimination by association.
This is also illegal discrimination of treating a disabled individual more favorably than a non-disabled individual.
There are six major types of the disability discrimination are-
The act was the first of its kind for including the protection of disabled individuals from several kinds of discrimination. It includes-
Direct discrimination
Where the disabled person is treated less favourable if compared to another individual because of the disabled.
Under section 18 of the equality act, 2010, the direct pregnancy discrimination and maternity discrimination takes place when at the protected period, a female is treated in an unfavoured manner only because of their pregnancy, or any kind of the illness which are suffered by them as the consequences of pregnancy.
Failure in making some reasonable adjustments-
Where any practices of an organization or workplace that features about the premises that put a disabled worker at some disadvantages.
The victimization-
Where the individual is treated in a un-favor manner due to which they have made a serious complaint regarding their treatment as an individual who is disabled. The victimization takes place when the individual is treated in a bad manner because they have made a complaint regarding discrimination under the equality act, of 2010. This could also occur when the individual is supporting another individual who has made a complaint of discrimination.
For example- the employee has made a complaint about discrimination regarding disability. The employer threatens to sack them unless they have been withdrawing the complaint. The employer threaten in sacking the member of the employee because he thought that she has any intention of supporting the disability of the discrimination claim.
The indirect form of discrimination takes place when there are some rules, policies, or a kind of practice that applies to everyone but particularly disadvantages occur when people share the particular features that are protected. The indirect discrimination can be justified if that could be seen that those rules or practices or policies are having an intention of meeting a legal objective in such a balanced or fair or reasonable manner. If this could be seen then it would be considered legal. When there is a consideration of introducing the new policy or a new rule, then one must consider whether there is any other manner of meeting the objectives that would not have a discriminatory effect. It is also likely to create a disadvantage for the people who have a protected feature under the law. It is also a point to be noted that if there is a lack of financial resources only, then it is not likely to be considered enough justification.
The indirect discrimination takes place when the organization has some particular policy or a manner of working that might have a worse effect on the disabled people if compared to the individual who is not disabled. The indirect form of disability is illegal unless the organization sees if there is a good reason behind the policy formed. This is also known as the objective justification for an instance, a job that states that all the applicants for the job should have a driving license and this might put disabled people at the disadvantage because they might not carry a driving license, but if this advertisement is for the job of the bus driver then the requirement would be justified but if this is for a teacher then it would not be able to be justified.
According to the section 19 of the equality act, 2010, the term indirect discrimination is defined as a situation when the person is discriminated against other person, or if this form of the discrimination is applicable to a provision, practices or criteria that is discriminatory in relation to the relevant protected features of other individual. The first individual can not consider it as a proportionate means to achieve a legal aim.
The relevant protected characteristics are—
According to section 20 of the equality act, 2010, there is a duty of making reasonable adjustments which is made of three reasonable requirements. These are-
Where the provision, practice or criteria of the individual on whom this duty has been imposed has put the disabled person at a substantial disadvantage regarding disability.
Where the person who is disabled and its physical feature put him across an important disadvantage so a reasonable duty to avoid such disadvantage.
Where the person who is disabled and its physical feature put him across an important disadvantage so a reasonable duty of providing auxiliary aid.
Discrimination that arises from the disability takes place when disabled individuals are treated unfavorable. This is because of something which is being connected with their disability and there is also no justification for the treatment which is not favorable.
The treatment could be justified if that could be shown that it has been intended for meeting a legal objective in a fair and reasonable as well as balanced manner. If this could be shown then the treatment would be lawful.
This form of discrimination could occur only if the employer or the provider of the service knows about the same that this disabled person is disabled.
The equality act 2010, has also made a special clarification that this is not legal for discriminating against a woman just because she has been breastfeeding. This simply means that an employer is required to permit women to whom they are providing goods, services, or other facilities to breastfeed their child if they are willing to do the same.
Harassments
According to section 26 of the equality act, 2010, the person harasses another person when the former individual engages in unwanted behaviour regarding protected features. It also involves violating of the dignity of the latter individual.
The relevant protected characteristics are—
The harassments take place whenever an individual is treated in some manner that makes him or her humiliated or degraded or offended. For an instance- harassment occurs when a disabled woman is sworn at regularly and also called various names by her colleagues at the workplace, because of her disability. The harassment could never be justified however, the employer could show that everything has been done for preventing people who work for the same and behaving in the same manner then one would not be able to claim the same.
Other conventions related to employment law
The country of the United Kingdom has ratified or has adopted the convention on the rights of the persons with the disabilities that is CRPD in the year 2009. According to Article number four of this convention, there are general liabilities for all the signatories for the elimination of discrimination based on disability. However, at present, there is no such explicitly statutory requirement for the government and the authorities that they could have in regards to CRPD while developing new laws and new policies.
The disability discrimination act of the year 1995 was replaced by the equality act of the year 2010, in England and Wales, and Scotland. The disability discrimination act of the year 1995 remained in the law books of Northern Ireland. Several amendments were made to the anti-discrimination legislation that has been accepted by the rest parts of the United Kingdom and therefore has been introduced in the country of Northern Ireland through the process of the secondary legislation. However, there are several groups have been called for simplifying the laws in Northern Ireland. This was done with the motive of bringing equality in-laws around the region of the United Kingdom.
The change in disability criteria-
The protected feature of the disability applies to an individual who has some kind of physical or mental impairment and this mental or physical impairment might have some long term adverse effect on their ability so that they are not able to carry day to day operations.
The change is that qualifying for protection from discrimination, as a disabled person who has no longer showing their particular form of impairment and this affects the particular capacity. Like, it includes mobility, hearing loss, eyesight loss, and speech. Before this, the protection extends wider than the own protected features of an individual like being protected from such kind of discrimination due to an association or the perception of the association. This applies only to religion or race or belief or some sort of sexual orientation. But now at present, this applies to a disability, gender reassignment, and sex as well.
At present in the equality act of the year 2010, indirect discrimination applies to disability as well as gender reassignment and also to the other protected features. It is also a point here to be noted that the maternity issues and pregnancy issues are not covered here but there are some policies or the practices which would create a disadvantage for new mothers or pregnant women and this could constitute indirect sex discrimination illegally.
CONCLUSION
Under the equality act, of 2010, disability is one of the protected features in the law out of nine features. According to the provisions of the law, and this act, individuals with several disabilities have continued to get protection from direct discrimination as well as an indirect form of discrimination. It also includes harassment which was related to disability as well as victimization. There were several laws and provisions included in the disability discrimination act of the year 1995 that were directly incorporated into the equality act of the year 2010. The rights of the disabled groups of the people have continued to a campaign for getting an improvement in the rights of the protection for the disabled individual.
The equality act of the year 2010 has brought together and harmonized also up to some extent, it also extends the current law of equality. This aim in making it more consistent and easier and clearer so that there is more fairness and equality in society. As a public sector organization, the responsibilities would remain large but at the same time, there would be some differences that one must be aware of.
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